Antimoonlighting must be nondiscriminatory
Published 08/12/05

It is not uncommon these days for an employee to have more than one job. Often times, one job is a "full-time" job and the second is a part-time job. The "primary" employer, however, may expect its employees devote 100% of their working hours to that employer for the good of the business, and may need or require the employee to work beyond their "regular" hours on occasion. If the employer decides that he is going to impose such restrictions on their employees, it is best to have a written agreement to which both employer and employee may refer to for guidance relative to their respective rights and obligations. All anti-moonlighting restrictions must be implemented in a non-discriminatory matter.

Employers may desire to impose anti-moonlighting restriction on their employees for several reasons. If the employee is a salaried employee, the employer's expectation may be that he is providing adequate compensation for the employees to devote 100% of their working hours to the employer's efforts.

Furthermore, although non-competition or non-solicitation of customer agreements can be very important protections for an employer, the employer may also choose to prohibit moonlighting to avoid giving current employees the opportunity to utilize competitive and confidential information in another job.

It also can prevent the employer from having to analyze on a case by case basis whether or not an employee's second job may result in the employee working, either directly or indirectly in competition with the employer. For example, if a software designer works for a particular company and moonlights as an independent consultant to other companies, the employer would have no need to analyze whether or not that moonlighting as an independent contractor, risks dissemination of confidential and proprietary information of the employer and/or directly or indirectly is taking business from the employer. If the employer has an anti-moonlighting agreement, that employee is strictly forbidden from taking that second job.

A second significant reason to restrict moonlighting, particularly for engineers is the question of what happens to intellectual property developed by the employee outside the workplace.

To resolve this issue, the employer may also include a written acknowledgment by the employee that all intellectual property created or otherwise worked on by the employee during their term of employment with the employer is the property of the employer, and the employee will take whatever steps are necessary to protect the employer's interest in that intellectual property, such as filing for the patent and assigning it to the employer.

From the employee's perspective, the more the employer demands or requests, the better compensated the employee should be. The employee has to negotiate with the employer an agreement that meets that employee's needs.

If the employer wants to forbid moonlighting, the employer must be willing to compensate accordingly to attract a qualified employee for that position. If that employee decides to work for the employer under the job that involves periods of intensive work to meet deadlines, as in many salaried jobs, both the employer and employee must realistically think about the feasibility of that employee being able to accomplish that job if she has other "moonlighting" commitments pressing for her time and effort.

To the extent there is an agreement reached, it should be clear, succinct, and in writing so that both the employer and employee know what the parameters of their respective rights and obligations.

J. Daniel Marr is a director and shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and business persons on a variety of legal issues, including employment, and advocating on their behalf. You can reach Attorney Marr by e-mail at: dmarr@hamker.com

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