Moonlighting Jobs: What About Leave of Absence or Workers’ Compensation Situations?

Many employers have this employee concern come up from time to time.

In my previous HRTools Insight, I discussed how moonlighting jobs and related issues seem to increase during recessionary periods. This issue also comes up in other types of situations, as well.

Is this legal?

What happens if an employee is on an FMLA leave-of-absence, and an employer learns that this employee is working a secondary job? Or, perhaps an employee is injured on-the-job and unable to return to their normal job duties. He or she may be collecting workers’ compensation benefits, and an employer learns that this injured employee has taken a secondary job.

Most employers want to know if this is legal. Do employees have a legal right to do this?

Simply put: It depends on the situation and how it is addressed in your company policies.

Cautionary point: Employers should be very careful how they address these types of policies and how they are going to enforce them. So I strongly recommend that employers seek legal counsel to help draft, review and implement any such policies.

Here is an example to help illustrate why employers must be very careful in these situations.

Let’s say, you have an employee who is a warehouse worker. He or she may have gotten injured while sweeping and cleaning, or while changing light bulbs or moving boxes. The resulting injury may make it impossible for this employee to lift or perform any type of manual labor tasks. This individual might be able to sit at a desk instead, but your company currently has no desk jobs available for this injured employee.

In such a case, if this employee can find employment elsewhere that allows him or her to sit at a desk and answer the phone, then the workers’ compensation status remains unaffected. Now, if this injured employee goes to another company and takes on a position in which he or she is lifting boxes, sweeping floors and changing light bulbs, then that might be an issue.

In other words, if the primary business employer cannot offer the injured employee (keeping in mind those stated restrictions) a way to return to work at this primary business, then generally, the employee is within his or her rights to take another position with a secondary employer.

So when you’re looking at secondary employment issues that result from leave-of-absence or workers’ compensation situations, you have to look at them on a case-by-case basis. And this is why you will want to avoid making related blanket policies and statements. 

When faced with secondary employment issues, employers should look at them on a case-by-case basis.