The Good News provides a monthly column with important content having to do with topics from the legal community. This month features a conversation with Jennifer Wahba, an associate with Tripp Scott.

 

In today’s economy, many Floridians find themselves needing to work two jobs just to make ends meet. Others pursue outside employment to fulfill personal interests and aspirations or to pursue a career transition. 

But a second job can give rise to some ticklish situations. After all, we can agree that your employer has an interest in:

• Ensuring workers are in a position to satisfy the job’s requirements and are not, for example, too tired or working overlapping hours,
• Protecting business secrets and other proprietary information, and 
• Keeping employees from working with a competitor or otherwise acting in a way that could damage the business.

So let’s explore what you as a current or potential dual worker can do to protect yourself.

 

Bill Davell: Can my employer restrict or outright prevent me from taking a second job? What rights do I have under these circumstances?

 

Jennifer Wahba: Florida is an “at-will” employment state, which means that absent a written – not oral – agreement, an employer can dismiss any employee at any time for any reason or no reason at all (except in cases involving discrimination or retaliation, for example, for protesting work conditions or refusing to participate in illegal activities). 

At-will employers are free to establish and enforce, including through suspension or dismissal, policies restricting the nature of outside employment. These restrictions could include, as suggested, preventing conflicts of interest such as working for a competitor or running a competitive business. 

Second jobs could conceivably run afoul of provisions restricting dangerous activities or, for businesses where reputation is key, so-called “morals” clauses. An employer could also outright bar outside employment, even if it may be just evenings or weekends.  And workers in general have a duty of loyalty to an employer not to undermine the organization.

Some workers operate under written employment contracts, which may have similar restrictions and consequences or include “best efforts” clauses which could be construed as restricting outside employment which could affect performance of an employee’s duties.

So it makes sense to investigate whether any such policies or contractual provisions exist before looking into or taking an outside job. By the way, you’ll probably want to make sure the second employer doesn’t have such restrictions either.

 

BD: Am I required to disclose my outside job to my employer?

 

JW: Employees are generally not required to disclose a second job absent contractual or policy restrictions. On the other hand, every good lawyer recognizes that practical considerations often trump legal obligations. Even if there is no written restriction, speaking to your employer – in fact, both employers – at the outset is likely a better approach than hiding a second job. 

That’s especially true if the outside employment is affecting, or has the potential to affect, the fulfillment of your duties or in any way conflict with the business’s objectives. Or even if you simply suspect that your organization would frown on an outside job.

 

BD: How would I approach such a conversation?

 

JW: The key is to set both employers’ minds at ease by indicating first, that you want to remain open and above-board, and second, that you want to structure your situation in a way that ensures you meet your employers’ requirements and expectations for both jobs. Not to mention to put the resulting terms in writing to prevent misunderstandings and protect all parties.

 

BD: What specific actions could I take to achieve that result?

 

JW: I recommend proposing to your supervisor(s) or HR manager(s) the negotiation of a written “moonlighting policy” or agreement specific to your situation that clearly sets out all parties’ understanding and obligations. Again, the policy should focus on protecting the current employer’s legitimate business interests, while not unduly restricting your off-duty conduct. 

Provisions of such a policy could include:

• The designation of your existing job, which is likely full-time, as your “primary” employment
• Your primary employer’s express approval of any outside job and employer
• Specific arrangements ensuring the second job does not interfere with your primary job duties or responsibilities or otherwise pose a conflict of interest
• Restrictions on requests to modify or re-arrange required hours to accommodate the second job
• Restrictions on use of sick leave to perform outside employment.

You can also suggest, for your employer’s protection (and to ensure the organization remains motivated and committed to continuing and living up to your agreement) that the organization establish and consistently apply similar moonlighting policies and terms among all employees.

 

Tripp Scott’s Labor and Employment Practice brings high-level and extensive experience in all aspects of managing the employer-relationship, including structuring employment agreements but also providing the proactive guidance you need to manage a dual-employment situation. Feel free to reach out to me at [email protected] or 954-525-7500.

 

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