Employee Moonlighting: Best Practices for Maine Employers

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In today’s economy, with unemployment running at an historically all-time high rate of 9.5 percent nationally and 8.3 percent in Maine, many workers are needing to take on second jobs. In fact, according to the U.S. Department of Labor, in June 2009, 5.1 percent of American workers held multiple jobs.

Although employers certainly are permitted to bar their employees from moonlighting or accepting outside employment, most employers generally do not prohibit their employees from working second or even third jobs. However, prudent employers should adopt policies that impose reasonable guidelines and restrictions on moonlighting or outside employment under certain circumstances.

Here are a few prime examples for Maine employers to consider when it comes to moonlighting employees:

Conflict of Interest

Outside employment should be prohibited if it would create a conflict of interest for the employee. An employee has a conflict of interest whenever the employee (or a member of his or her immediate family) has a personal interest in any entity or matter that may influence a decision, or cloud the employee’s judgment or conduct in the discharge of his or her responsibilities to the employer.

An employee taking a second job with one of his employer’s competitors, customers, or vendors, for example, could create such a conflict. Employers should adopt a policy that requires employees to provide prompt written notice to their employer of all potential conflict of interest situations.

Clear Communication Up Front

Employers should require employees to discuss the outside employment with their immediate supervisor or some other member of management, and disclose the nature of the outside employment before accepting the outside job, to determine if the second job is compatible and consistent with the employer’s interests, and with the employee’s present and future career. In fact, many employers require employees to obtain approval from the employer to take on a second job unless the employer approved such outside employment prior to the employee’s hire.

Use of Employer Resources

Employees should be strictly prohibited from using the employer’s computers, copiers, telephones, fax machines, courier services, or other equipment or services in performing outside employment. Further, employees should be prohibited from working on assignments or projects for the outside employment while on the employer’s time, property or business.

Job Accountability

Employees should be told that if the employee’s job performance for the employer declines because of inefficiencies caused by a longer-than-normal work day or by other factors related to the outside employment, the employee will be requested to terminate the other position.

Employers who adopt such reasonable policies as these on outside employment can generally avoid many of the problems that arise when employees “moonlight” on second jobs.

Jonathan Shapiro is the regional managing partner of the Portland, ME office of Fisher & Phillips LLP (www.laborlawyers.com). Shapiro is a leading voice in employment law, having been ranked by Chambers & Partners as a top labor and employment attorney for management in Maine since 2003, twice named a New England SuperLawyer in Employment Law, and repeatedly named among the Best Lawyers in America for his expertise in Labor & Employment Law.

Disclaimer: The materials in this column are provided for informational purposes only, do not constitute legal advice, and do not necessarily reflect the opinions of Fisher & Phillips LLP or any of its attorneys or clients. Neither this column nor the information contained herein is intended to create an attorney-client relationship between the viewer, reader, recipient, or user and Fisher & Phillips LLP.