The concept of ‘Moonlighting’, gaining much wider attention isn’t afresh as it has always been in practice. It is pertinent to note here that, the detection of extensive number of moonlighting cases in India has essentially led to the much talked about topic of discussion. Before going into further discussion, let’s first understand the meaning of moonlighting -
Moonlighting is the practice of working with more than one organisation at once, without the employer’s knowledge.
The trend of moonlighting has been rampant in the UK and the US for several years, especially in the IT & Software Development Companies. The similar trend of moonlighting has marked its place in the Indian IT & Software Development Companies and more particularly, in a post covid scenario. There may, perhaps, be multiple driving factors for such escalation like work from home (WFH), financial burden, job insecurity, etc.
Legal trouble for Employees
Though this concept is widely in practice in the UK and the US, it is still novel in India. However, taking a similar job in a Competitive Organisation would certainly give rise to breach of Non-Compete Agreement and violation of confidential information on employee’s part, which may result in termination and, the company may even institute civil or criminal proceedings for the breach of contract or cheating respectively. It is also to be noted that in many states Factories Act, 1948 explicitly prohibits engaging in dual employment.
So before reaching an ethical debate, it is pertinent to discuss the effect of Moonlighting on Employer and Employee, respectively. Employers are concerned about divulgence of trade secrets and confidential information; unproductivity amongst the employees; exploitation of the company’s resources for employing in the secondary job; increase in operating expenses; low morale and health issues amongst employees along with, conflict of interest, etc.
From the Employee perspective – An employee indulges in moonlighting for paying off debt; earning extra money for covering expenses; need for security or is in the midst of changing a job, etc. Therefore, in order to reach a solution in this conundrum, Employers or Organisations must take steps to formulate a moonlight policy.
Moonlight Policy - Need of the Hour?
A Moonlight Policy shall not necessarily restrain employees from taking any secondary jobs but the Employers shall include the terms in the Agreement which works for both the Employer and the Employee in laying a middle ground. For instance, a Moonlight Policy can include: consent to employee for taking a secondary job with acknowledgement of the present organization, with an exception to not employing in an Organization that is in competition with the present organization. On the same lines, Swiggy recently announced a new work policy that will allow its Employees to take on additional employment, as long as it's done outside of business hours and doesn't interfere with their productivity at the food delivery company.
Thus, for effectively managing Moonlighting, Employers should focus on tracking the performance of their employees and ensuring whether they are meeting their job requirements; determining whether the second job hinders the objectives and performance of the employee or if it is a Conflict-of-Interest matter or is violating the Anti-Competitive Competition Clause of the Company.
Similarly, to be on the safer side, Employees are recommended to acknowledge the Moonlighting and Non-Compete Policy of the Company before indulging in any kind of secondary job. Big giants like Wipro, which fired nearly 300 employees, is serving as a big example for termination on grounds of lack of Company’s consent on Employee’s secondary employment. Following the lines of Wipro, Infoys also declared to be a successor for following the same action of termination of employees if they are found taking up dual-employment.
The increasing trend of remote work in the Country has also led to the escalation of dual–employment in India.
With respect to Moonlighting, there is still a lot of skepticism and lack of clarity amongst Employers and Employees. Thus, in order to absolve the tendency of the situation, employers must make sure that the company's policies on employment are crystal clear in all of its documents, including the employment contract. Thus the Employees also need to carefully review their Employment Contract with their primary work to guarantee compliance with any Moonlighting Policies before looking for side jobs or launching a business.
The debate on whether Moonlighting is ethical or not, will continue to persist. Thus, an Employer’s stance towards dual-employment and the reciprocating productivity from employees will fundamentally decide the fate of Moonlighting in an organization.
( Author: Priyal Jain is a legal Assistant at TechDoQuest.)