What is “moonlighting”?

During strenuous financial times, employees are increasingly determined to seek additional sources of income. This tendency may cause a decrease in productivity in the workplace as employees attempt to supplement their income after hours, by way of second or even third job. Moonlighting is defined as working an extra job without telling your main employer.

Do employees have the right to have an additional job?

South Africa’s Constitution states that everyone has the right to work. In essence, employers can therefore not prohibit an employee form working. This does not mean that the main employer should just accept a possible negative impact on an employee’s work performance as a result of a second job. Employers can take proactive measures to manage the situation.

 To manage their risk such as “moonlighting”,  proactively, employers can do the following:

  • Include a clause in their employment contracts to the effect that employees are required to request permission to take up additional employment and to disclose any conflict of interest that may arise form such additional employment.
  • Implement clear rules relating to additional work that address the following:
    • The additional employment should not:
      • be in contradiction with the employment contract;
      •  harm or potentially harm the employer’s business;
      • affect the employee’s capacity to work for the main employer.

Additional work during sick leave or temporary incapacity

Moonlighting scenarios may also arise where the employee’s honesty is taken into question. It is surprisingly common for employees on long-term sick leave to supplement their income during the period of incapacity. In this instance, disciplinary measures may be taken. Employers should however note that the nature of the illness may have a genuine effect on the work they do for you, but may not prevent the employee form performing other work of a less strenuous nature. An investigation should therefore be conducted prior to disciplinary steps being taken.

Employees have a fiduciary duty to act in good faith

Employees have the duty to act in good faith towards their employer. Should it appear that an employee is for instance diverting customers or work away form the main employer to the additional employer or to do the work on his/her own account in his/her spare time, this conduct may be construed as a breach of such duty. Instances such as these should be listed as serious misconduct in terms of the employer’s disciplinary code and dealt with accordingly.

Contact the LWO for advice and assistance when confronted with an employee that is moonlighting or has additional work that effects your business to ensure that the matter is dealt with lawfully.

Not an LWO member? Take a look at our membership options.

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LWO Regsadviseur - LWO Legal Advisor

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