Q: We suspect one of our managers of secretly working a second job during work hours. We believe he disguises that he works a second job by using his personal laptop while leaving his company-issued work computer on.
For us, this is an integrity issue, as he is a very well-paid exempt manager and not an hourly worker. While it’s hard to quantify what a manager should be doing, he has let certain tasks slide, and that’s how we first got an inkling that something wasn’t right. Two different individuals questioned this manager about an obligation he missed and reported that he gave each a different excuse. It’s worth noting that the rest of our managers work at least 50 hours a week between administrative duties, actual client-centered and other service work, and time spend supporting their employees.
This manager is a member of a racially protected category and gives a lot of pushback when he’s displeased, so if we require that he work in the office rather than remotely to better monitor him, we fear a discrimination complaint. We don’t, however, want to retain a manager we can’t trust or have to monitor to ensure he works a full day.
We know we’ll have to prove what he’s doing before firing him. We’ve hired a detective and have our IT specialist working on the situation. If we can make a clear-cut case for what he’s doing, do we also need a moonlighting policy before we fire him? How do other employers handle moonlighting, especially during pandemic times?
A: What does your employment agreement or employee handbook say? Do your personnel policies clearly state that your managers are employed “at will” and need to give all working hours to your company, or are they free to pursue other interests when off-duty?
From what you describe, your manager “daylights,” which is different from moonlighting. Moonlighters take a second job to make ends meet or to try out other careers. Unlike those who moonlight after work, individuals who “daylight” work two jobs at once. For example, an employee who takes calls for his private business when “on the clock” daylights.
Many employers allow moonlighting if their employees let them know about it, maintain productivity and avoid conflicts of interest by not working for an employer’s competitor. An estimated 7% of full-time workers in the United States moonlight and consider it a viable solution to low pay, work hour or wage reductions or potential furloughs and layoffs.
Moonlighting has downsides, as when an exhausted employee snoozes at his desk or interrupts his primary job to handle secondary job concerns. When problems arise with employees who moonlight, employers need to focus on work performance and conflict of interest issues and assess the situation on a case-by-case basis.
As one example of a conflict of interest, an arbitrator ruled in the Detroit police department’s favor when it fired an officer who initially moonlighted as a polygraph examiner in non-criminal matters but then administered polygraphs on his off-duty time to criminal suspects. In another example, a water department supervisor ran an irrigation business on the side. He hired several of his direct reports and some of them completed projects for the supervisor’s personal business on city time. The city terminated the supervisor.
Moonlighting policies can be tricky because an employee has the right to privacy and freedom of off-the job association. A basic moonlighting policy, and one you need to ask your attorney to review, might read: “Your job with our company is your primary job. While what you do on your own time and away from the workplace is your business, if another activity results in a conflict of interest or your inability to satisfactorily perform your duties during regular working hours, it may end your employment.” Your attorney may, however, steer you away from a moonlighting policy to a conflict of interest policy and a prohibition against using company time, materials, equipment or proprietary information if working for another employer.
Daylighting causes employers more anguish than moonlighting because it constitutes time theft. Your manager might have made this worse by shoehorning his second job into the same shift as his primary work and then hiding his actions. You have the right to expect honesty from your managers and that they focus on the job you pay them for during regular business hours.
Given you’ve reported, I suggest you provide an attorney the salient facts and go from there.