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Moonlighting: Recent trends and Policy Issues

Jyotpreet Kaur, intern at Centre for Labour Law Research and Advocacy, Delhi.



The pandemic and the consequent “work from home” that came with the pandemic have impacted, if not changed, the labour practices prevalent in the country. Ideas like “quiet quitting” became very prominent wherein workers would enforce strict boundaries with respect to the time and work they would engage in, not going beyond their job description, and limiting their work to strictly what’s required of them [1]. Similarly, moonlighting as a term and notion has garnered attention owing to its presence in the news on account of WIPRO laying off some 300 employees for engaging in moonlighting [2]. This begs the question of what moonlighting is and the possible motivations behind employees engaging in moonlighting and to gauge possible if any, legal actions against moonlighting.


What is moonlighting?


The term moonlighting finds its origins in the US, where it was used to describe the second job taken by a worker often at night aside from their day job, implying working by moonlight. Thus, moonlighting came to be used for any side job apart from the traditional ‘9-5’. There are various reasons which motivate or sometimes even compel workers to have 2nd jobs and at the same time, it is also a cause of concern for employers.


What drives moonlighting among employees?


It is considered that people take up multiple jobs for the purpose of earning a little extra money on the side. According to Maslow’s hierarchy of needs, need-fulfillment is one of the most primal desires for any person, and this desire for fulfilling one’s needs leads one to pursue two jobs at times [3]. While that may be true for a lot of employees who take up second or even third jobs for monetary support, a review of the trends in moonlighting has revealed that workers often do so for non-monetary benefits well. In a study conducted by Deborah Sussman in 1998, it was observed that apart from monetary reasons, workers engaged in moonlighting for reasons like employment opportunities and work experience along with an interest in the second job. Furthermore, the study concluded that women were more likely to be engaged in moonlighting in contrast to men (6%, compared with 5% for men) and the level of education of the workers also played a significant role in the same, with those holding a post-graduate degree more likely to have a second job compared to those with a high school diploma for example [4]. However, this varies depending on the environment. In India, “moonlighting” in the public domain is highly restricted for women due to their increased domestic obligations and night-time job restrictions.


In her work, Sandra Fredman discusses how the workplaces in the UK and the EU are heavily gendered, particularly those that govern part-time employment. She continues by asserting that women enter the non-traditional/part-time work market because they feel pressured to contribute to the family income given the fact that their role had predominantly been reserved as caretakers of children. The dilemma with this is that, although making up a greater share of the workforce for part-time employment, women frequently experience less security, rendering the promise of “flexicurity”, or flexibility with security, an improbable reality.[5] While the institutional rules regulating conventional standard employment contracts are mostly static, there have been significant structural changes that primarily impact non-typical or “atypical” jobs.[6] This becomes particularly important in the context of moonlighting, given that taking up these second or third jobs is often not covered by employment protection rights, leaving women even more marginalised owing to this binary divide.


This can further be illustrated by the Kerala High Court’s judgement in Vettro Traders and Integrated Services v. Sub Inspector of Police (2019 SCC OnLine Ker 2651), wherein, the High Court refused to grant registration cards under Rule 26A of the Kerala Headload Workers Rules to anyone except those registered on the employers’ official payroll, restricting and prohibiting moonlighting.


Dual employment: A concern for employers?


Moonlighting typically puts the employer in an ethical predicament since it frequently happens that an employee would hold a second job in a related field, which has the potential to cause corporate secrets to leak. On the other hand, an employer should ideally not be able to dictate what an employee does with their free time. At the same time, employers are also concerned with the efficiency and productivity of their employees, which they believe is often at stake due to employees overworking themselves. However, employers in India have reacted very differently to moonlighting in the recent past. Where, Swiggy’s HR head has called moonlighting, “the future of work” and introduced a policy that allows its employees to hold secondary jobs [7], and Tech Mahindra CEO, CP Gurnani has been open to the notion of moonlighting so long as it doesn’t impact theefficiency of the employees at their primary jobs [8], there have been those who have dissented moonlighting including WIPRO Chairman, Rishad Premji, who called it “cheating, plain and simple” [9].


Is moonlighting legal under Indian law?


The term moonlighting is not explicitly mentioned or defined in any labour or employment law in India. However, the laws as they stand today do take cognizance of dual employment and essentially seek to control it to some extent. Section 60 of the Factories Act, of 1948, for instance, puts an overt restriction on dual employment, barring factory workers to work in any other factory on a day apart from the one where they hold their primary job. However, the conflict in defining ‘dual employment’ comes into play when looking at the various State Shops and Establishments Acts. It is important to note that the provisions of the Factories Act do not apply to organizations that are not covered under its ambit and that such organizations are thereby covered under the Shops and Establishments Acts. Furthermore, the definition of ‘worker’ under the Factories Act excludes IT officials and other administrative officials from its scope. Section 9 of the Delhi Shops and Establishments Act, for instance, states that “no person shall work for the business of an establishment or two or more establishments or an establishment and a factory for a period in excess of which he may lawfully be employed under the act”. Interestingly, there exists a dual obligation under the Factories Act, firstly on the employer to not let their employees engage in double employment, and secondly on the employee to not work elsewhere. This dual obligation is mostly lacking in several State Shops and Establishments Acts which provide different laws governing dual employment in different states. The case law relating to dual employment is also rather conflicting. Wherein, the Kerala High Court prohibited Moonlighting in the aforementioned judgement, the Madras High Court upheld it on the condition that there must not be any provision to the contrary in the employment contract of the employee (Government of Tamil Nadu v. Tamil Nadu Race Course General Employees’ Union, 1991 SCC OnLine Mad 506). Thus, there exists no overarching law per se which restricts moonlighting completely for all workers. The laws relating to moonlighting vary from worker to worker and from state to state. However, despite this lacuna of the legal basis for moonlighting, the presence of a confidentiality clause in most employment agreements renders an employee unable to take up a job similar to their primary job as it may lead to a breach of confidentiality. Such non-compete clauses have been upheld by the Indian Judiciary, most notably by the Supreme Court in Niranjan Shankar Golikari v. Century Spg. and Mfg. Co. Ltd. ((1967) 2 SCR 378) where the Apex Court held that a non-compete clause in an employment contract was not in restraint of trade unless the clause was extremely harsh or one-sided. As a result, the scope of moonlighting mostly depends on the parameters established between the employer and the employees, whether through an employment contract or in accordance with organisational standards.


Conclusion


Moonlighting, ultimately becomes a dilemma of ethics vis-à-vis the workers’ motivation behind moonlighting. Studies of moonlighting among the general populace, although very little, reveal that economic factors are the major motivation behind the same. Therefore, an outright ban on the same would appear rather harsh. Therefore, developing a more lenient approach centred on helping employees who are obviously suffering from poor mental or physical health, or whose performance and attendance have declined, would be a better, more pragmatic option. Most employment contracts today prohibit double employment in some respect. Where on one hand there are employers who are against moonlighting, there are some who see moonlighting as the way forward. The future course of action can include coming up with innovative HR policies which allow management and employee goals to be fulfilled simultaneously [10]. Moreover, it becomes important to have a comprehensive policy governing moonlighting which lays down the rights and liabilities of both employers and employees given that the current legal framework cannot be said to be decisive in treating moonlighting.


Endnotes


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