Recently, a National Labor Relations Board (NLRB) administrative law judge struck down a moonlighting ban in Nicholson Terminal & Dock Co. In that case, the company tried to ban employees from taking additional jobs that 1) were inconsistent with the company’s interests, 2) detrimentally impacted the company’s public image, or 3) required so much time and effort that they would adversely affect employees’ work. The third prong wasn’t challenged, but the judge ruled that first and second parts were too restrictive.
The company argued that the main purposes of its moonlighting ban were to promote workplace safety and to prevent employees from working for competitors. While acknowledging these to be legitimate reasons for the rule, the judge determined that the ban intruded upon the employees’ right under the National Labor Relations Act (NLRA) to organize or unionize after hours, because the ban could prohibit a second job as a union organizer.
Historically, some companies have contended that activities like discussing workplace conditions, complaining about labor practices, or encouraging union efforts should be prohibited because they go against company interests or negatively affect the company’s image. The NLRB has held that employees’ right to unionize or associate collectively outweighs such concerns.
Today, policies geared toward protecting a company’s image or interests are often red-flagged. That means that they could lead to litigation or be deemed unenforceable.
Consider a moonlighting policy instead of a ban
Some workers must work two jobs to make ends meet, to pay off debt, or to build savings. However, companies may have legitimate concerns about employee moonlighting. To maximize clarity and avoid enforcement issues, employers should consider limited policies that address legitimate concerns without overreaching.
One legitimate concern is workplace safety. An NLRA-compliant policy could promote safety by setting clear expectations that employees must meet the demands of the current job before taking on additional work, and that they could be terminated if their second job interferes with their current job. Meeting the demands of the current job might include being available for scheduling, being efficient and productive, and being awake and alert at work.
Another legitimate concern is avoiding conflicts of interest or similar problems at the second job. A compliant policy might provide examples of which activities are prohibited, like working with a direct competitor, soliciting company customers, benefiting from proprietary company information, and sharing proprietary information with others. To make the purpose of the policy clear, employers may also want to include a statement that the policy is not intended to prevent employees from participating in any protected activity.
A good policy is one that achieves your goals and is legally enforceable. Your employment law attorney can help you set up a policy that is both compliant and effective.
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