EMBRACING MOONLIGHTING: THE BALANCE BETWEEN THE EMPLOYEES’ NEEDS FOR ADDITIONAL EARNINGS WITH THE EMPLOYERS’ CHALLANGES
Moonlighting, the practice of holding a second job alongside one’s primary employment, has transformed into an enchanting moonlit dance. Despite not being a new concept, the rise of the gig economy and the quest for diverse income streams have propelled moonlighting into unprecedented popularity.
However, amid its promise of growth and financial stability for employees, navigating the legal complexities of moonlighting can feel akin to wandering through a labyrinth for employers. In this article, we will analyse moonlighting in depth, exploring its nuances and providing guidance for employers to navigate the legal maze it presents.
Moonlit landscape: Understanding moonlighting
Throughout time, individuals have always sought additional sources of income. However, the digital era and the rise of remote work have made it more feasible than ever for individuals to find secondary employment tailored to their abilities and schedules.
Moonlighting isn’t a one-size-fits-all concept. It comes in various forms, each with its own implications, such as: (i) blue moonlighting – when the employee struggles with having two jobs, (ii) quarter moonlighting – when the second job is part time; (iii) half moonlighting – when the employee has a full-time job and engages in a second part-time job that requires half of their free time and (iv) full moonlighting – when the employee has two full-time jobs.
Challenges: Navigating through the night
Moonlighting might present numerous benefits for employees, but it is important for the employer to be aware of the challenges that might arise with moonlighting employees:
- Conflicts of interest: Employers must be vigilant about potential conflicts of interest that may arise when employees engage in moonlighting activities. This includes situations where employees work for competitors or undertake roles that compromise their ability to fulfil their duties effectively.
- Intellectual property, confidentiality and/or GDPR breaches: Moonlighting increases the chances that employees may perform activities that involve the use or disclosure of confidential information or intellectual property belonging to the company. This risk is increased if the individuals have two jobs within the same sector of activity. Additionally, depending on the employee’s position within the company and the information they have access to, there is a risk of employees disclosing the personal data of other employees or clients, thereby exposing the company to significant GDPR fines.
- Misuse of company resources: Employees may use the equipment (such as laptops, software etc.) provided by one company in order to perform tasks for the other company.
- Overlapping working hours: One of the primary concerns for employers is the risk that a moonlighting employee may be performing tasks for one employer during the working hours of another, particularly if they are working remotely. In such cases, additional risks must also be considered, such as the employee’s health and safety. For instance, in the event of an accident at work, it could be challenging to determine which employer is responsible for assessing and registering the accident, if applicable.
- Risk of burnout: Having multiple jobs can trigger employee burnout and thus affect their job performance.
- Benefits granted to the employees: Certain benefits (e.g. meal vouchers) must only be provided by the employer where the employee has their primary job, so it is important for companies to know whether or not the employee has any secondary employment.
Guiding stars: Strategies for employers
Romanian law expressly guarantees the employee’s right to moonlighting, provided that the employee ensures that their work does not overlap. However, the law does not include any express sanction that may be imposed on the employee if they breach this obligation.
In this context, given that the employer cannot prohibit moonlighting, they should take proactive measures to ensure that employees understand what is permitted and what is not during moonlighting and to address any potential legal issues that may arise.
- Including relevant obligations in the employment agreement
- To ensure that the employee does not breach any obligations while moonlighting, it would be advisable to include relevant clauses in the employment documents, such as:
- Intellectual property, confidentiality and loyalty clauses to ensure that the employee does not share confidential information or proprietary information with their second employer
- Clauses regarding the company’s assets (e.g. equipment and/or software)
- An obligation not to overlap working hours in the case of multiple jobs
- In addition, a conflict of interest statement may be drafted at the beginning of the employment contract whereby the employee declares whether they are a shareholder, managing director or employee of a company’s competitor and undertakes to inform the employer if any potential conflict of interest arises.
- To ensure that the employee does not breach any obligations while moonlighting, it would be advisable to include relevant clauses in the employment documents, such as:
- Training managers and HR professionals
The employers should train their managers and HR professionals to ensure that they are well equipped to inform employees of what is and is not permitted during moonlighting.
- Drafting a moonlighting policy
A moonlighting policy would be a useful tool in order to set up a framework in which moonlighting may be performed (such as providing clear instructions for employees to avoid overlapping their work schedules) and establishing the rights and obligations of the employer and the employee.
Conclusion
Moonlighting is not merely a trend; it is here to stay. Rather than resisting it, employers should embrace its nuances and focus on ensuring a proper framework. This proactive approach not only mitigates legal risks but also serves as a catalyst for fostering organisational growth and prosperity in the dynamic landscape of contemporary work environments.
