Can my employer prevent me from having a second job?
UPDATED: February 7, 2020
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Although it may seem unfair, your employer may have the authority to prevent you from taking a second job. This authority may be enforced through an express contract or an implied contract. Three factors influence how your employer can restrict activities outside of regular work hours: (1) your employment contract, (2) the laws of your state, and (3) the nature of your job. You can determine the extent to which you are restricted from having a second job by examining the type of contract you have with your employer.
Express Employment Contracts
Employment contracts can be expressed (explicit) or implied (implicit). With an expressed contract, the employer and employee have explicitly agreed to the terms of the employment contract. An express no moonlighting policy is one way an employer might try to prevent an employee from having a second job. Often these contracts are realized in some form of writing. These types of contracts often include amount of wages, work hours (including overtime), holiday pay, sick pay, and how much notice an employer must give before terminating an employee.
Often the terms of an expressed contract are not in one single document, but stem from a collaboration of numerous documents. The other documents may include a job advertisement, letters sent by the employer to the employee before the employee started work, any documents that an employee was asked to sign before they started work, instructions given by the employer, which were posted on a notice board at work, office manuals or staff handbooks, and pay slips.
Implied Employment Contracts
An implied contract contains terms, which have not been specifically agreed upon between the employer and employee, but are implicit within the instant employer and employee relationship. Implied contracts contain general terms that are implied in most employment contracts. These terms are often determined by “custom and practice” of a particular job or employer. If no written document exists, an oral agreement, such as “40 hours a week for $40,000 a year,” becomes an employment contract.
Your employment contract should explain what you are allowed to do outside your 9-to-5 hours. Other general implied employment contractual terms include a mutual duty to trust each other. This means that an employee should not be giving industrial or trade secrets to the employer’s competitor. In addition, a duty of care exists between employer and employee. An employer has an implied contractual duty to provide a safe working environment, and the employee has the duty to safely complete their work responsibilities.
An employee has an implied duty to obey reasonable instructions or rules given by the employer. However, the definition of “reasonable” may be job specific, but an employer could not request that an employee do something, which is unlawful, such as driving an uninsured vehicle. Lastly, implied terms are guided by custom and practice, which means that if another employee has a particular right at the workplace, then you as an employee should be entitled to the same right as custom and practice of the workplace.
The express and implied terms of your employment contract will determine whether or not you have permission to have a second job while working for a particular employer. Some people work around eight hours a day, but are expected to be on call for additional hours. If you agreed to be on call during specific hours, you may have given up certain freedoms to work a second job during these hours.
An employment contract may also contain a non-compete clause (NCC). A non-compete clause can restrict you from engaging in certain activities outside of work. These activities may include entering into contracts with competitors. If you violated the terms of your NCC, you broke your employment contract. This would also mean that you would be prohibited from having a second job in the same type of industry while working for your current employer, as it could be seen as a competing business.
States have different laws regarding NCCs. Most states honor non-compete clauses. California is an exception. Its Business and Professions Code voids language in a contract that restrains an individual from engaging in a lawful business. Speak to an employment attorney licensed in your state to determine whether your NCC is valid. Parts of your NCC may be invalid if they are overly broad or grossly unfair.
Discussing a Second Job Opportunity with Your Employer
Sometimes it may be unclear as to whether or not you are authorized to work a second job. To avoid facing termination or possible reprimands, talk to your employer about meeting to discuss the issue. It is important to document all meetings. This will help protect you against misunderstandings regarding your right to work a second job. Note the times and dates of the meetings. Start by speaking to your boss, but it may also be helpful to talk to a member of your company’s Human Resources Department. If you are a member of a union, think of talking to your union representative.
As with any type of contract, employment contracts can be complex and difficult to understand. If you have any questions regarding the terms of your employment contract, whether express or implied terms, contact an employment attorney. An employment attorney is more experienced with these issues and can help you understand the terms of your contract and what, if any, remedies are available if your employer has breached the contract.