Question:
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 quantity 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 fifty 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 keep an eye on 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 now?
Answer:
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 create conflicts of interest by not working for an employer’s competitor. An estimated seven percent 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.1 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.1
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 in the performance of an outside job.
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 hidings his actions. You have the right to expect honestyfrom 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.
© 2020, Lynne Curry
Lynne Curry is the author of “Beating the Workplace Bully” (AMACOM, 2016, https://amzn.to/30V5JO6) and “Solutions”, https://amzn.to/2GYlnAN (both books are rated 4.8 out of 5 stars on Amazon.com). Send your questions to her at lynnewriter10@gmail.com, visit her @ www.communicationworks.net or follow her on twitter @lynnecurry10.
Subscribing to the blog is easy
If you’d like to get 3 to 5 posts a week delivered to your inbox (and NO spam), just add your email address below. (I’ll never sell it.) I’m glad you’ve joined this vibrant blog. Thank you!
Daylighting is a new term I learned, thanks to this case–thank you. Many of us may have seen some of this with part-time employees as well as with full-time ones. Thank you for the contrasts with moonlighting, and thanks for the reference to employee handbooks and how important they are for setting expectations, allowances, and tone in an organization. It is unfortunate that the chief course of action seems to be going to a lawyer, for whom the employee no doubt would have to pay. It’s amazing what people think they can do on work time on their jobs, isn’t it!
I think it is very sad that people abuse their minority status to advance nefarious agendas as this often fuels negative stereotypes about minorities. I will preface my comment by acknowledging that the labor laws are country specific However I do not believe that an individual can be singled out for being subjected to different set of tiles that fo not apply to the workforce at large. Hence I believe the employer should first fix their own policies which then can be used across the board to deal with daylights. I think something as simple as requiring employees who work remotely to log on to the rmployer’s system and account fir their remote activities, foes make it harder to engage in daylighting. In my experience, moonlighting is more difficult yo deal with as yhe time used is not the employees time. That is my two cents on this issue
I had a former co-worker that did this…to his former employer, while working (and even traveling) for us. There was a direct conflict of interest as what he was selling for our company he was selling for his former company, and he never told the other company what he was doing. I was never comfortable with this and wasn’t quite sure why my boss hired him as to me it was a huge red flag. Later, he essentially did the same thing to us and started his own competing business and stole several of our clients.
This is a tricky situation. On one hand, I have to ask what other employees do during “down-time” and on the other hand I have to question why management has not directly asked him?
He must be somewhat of a valuable employee if he became manager of his department (that wasn’t exactly clear in the question). It seems there are other reasons for wanting his termination and this serves as a scapegoat, or the final nail if you will.
There are many steps prior to termination that may remedy the situation. For example, verbal warnings, an official “write-up”, and suspension. Considering there is nothing in the handbook addressing this issue, you will likely have trouble in the courtroom.
Before terminating this employee and wasting company funds on private detectives, at least have a proven history of remedial action alongside his refusal to cooperate.
Jessica, all great points, and important for all employers to assess. And at the same time, the integrity issue needs to be addressed, which means that may be the core issue despite the employee’s talent.