'Employers have limits to what they can control in terms of what people do outside the workplace'
“This was an issue before AI and I think AI will make it more of an issue.”
So says California-based employment lawyer Wendy Lazerson, in discussing the practice of “overemployment” — when a person has more than one full-time job.
Remote work has become firmly established and the improving efficiency of AI tools has many remote workers thinking of taking on another job at the same time as their primary role — also called “moonlighting.”
An active Reddit community, “r/overemployment,” boasts almost 200,000 users trading tips on how to juggle multiple jobs successfully. One IT worker shared with the community how he went from earning $16/hour to $1.2 million in 2022 – working a whopping five remote roles.
Legal implications of overemployment
But what does this trend mean for HR departments?
The laws around such arrangements are evolving but there is nothing to prevent workers taking on more than one role.
In states like California, for example, a worker’s right to privacy outside their job is a prime consideration, said Lazerson, a partner with Sidley Austin LLP in Palo Alto and San Francisco and co-chair of the firm’s labor and employment international practice group.
“California has the constitutional right to privacy,” she said. “Employers have limits to what they can control in terms of what people do outside the workplace.”
As such, an employee does not necessarily have to disclose that they have more than one full-time job. Notable exceptions occur if there is a case of direct conflict of interest (for example, taking jobs at direct competitors) or if the secondary role directly interferes with the employee’s ability to perform the work they were hired to do.
If the employee is fulfilling the duties of the job and has another role, that should not necessarily be a problem for the employer.
“What is the employer’s legitimate interest in interfering?” Lazerson asked, adding many jobs exist outside a traditional 9-5 framework and it can be difficult to define what exactly is required to do a full-time job.
“Sometimes it is not a time component but about the quality of the work and doing what it takes to get the job done,” she said.
Employers can try to draft contracts with loyalty clauses or other stipulations to prevent workers from taking on more than one role but these could be challenged, Lazerson said. “It’s going to require very factually intensive analysis if someone was to challenge [such policies].”
Best practices for moonlighting employees
In terms of best practice, Lazerson recommends that employers ensure they have well-drafted conflict of interest policies and remain careful about the constitutional right to privacy of their workers.
Bay Area employment lawyer Robert Nuddleman of Nuddleman Law Firm also said employers should be open-minded about workers taking on more than one role. Each situation should be looked at individually, he said.
Policies attempting to ban workers from taking an additional job could violate California Business and Professions Code 16600, a “statute that voids any agreement that restrains somebody's ability to engage in their chosen profession,” he said.
Nuddleman suggested employers should include a duty to disclose any outside work in contracts and try to establish open communication around the practice.
“There's a legitimate interest in ensuring that our information's is going to be protected and you're not engaging in a conflict of interest,” he said. “Then, I don't have to rely on just whether or not you think there's conflict.”
Employers should have good confidentiality agreements with their workers, he added, as well as policies regarding protection of company assets such as cell phones and laptops.
“I’d make it very clear you do not use our computers for any other reason other than work,” he said.
