Moonlighting FAQs answered: Is it illegal? How many jobs can employees do at a time?

The moonlighting trend — working multiple jobs simultaneously — has been rising, especially in the IT sector. It made headlines when food delivery platform Swiggy allowed its full-time employees to engage in more than one job outside their office hours or on weekends.

Moonlighting policy has received a varied response. While Wipro’s Executive Chairman, Rishad Premji, considers it “cheating”, ex-Infosys director Mohandas Pai believes employment is a contract between an employer who pays their employee for working for them for 'n' number of hours a day and what a person does after that time is his freedom.

Tech Mahindra’s MD and CEO CP Gurnani also recently said at an event that he might make moonlighting a policy in his company if he is given a chance, but workers should be open about it.

However, not all companies have a similar stance. HR heads have told CNBCTV18.com earlier that if employees are found moonlighting without informing beforehand, legal action could be taken against them.

Vaibhav Bhardwaj, a partner at IndusLaw, answers all your questions here:

There is no express restriction under law as to the number of places wherein an employee can moonlight, except when the employees work in factories. Hence, provided that the terms of employment with the current employer do not prohibit it, an employee can moonlight at any number of places.

Most employers generally insist on exclusive employment and incorporate robust non-compete clauses and other restrictive provisions in an employee’s employment contract or applicable policies. If the employment contract or company policies prohibit an employee from taking up dual employment, the employer would be well within their rights to take appropriate action.

i) Conflict of interest: There is a possibility that employees take up second employment with an entity that competes with their current employer;

ii) Confidentiality: There is a significant risk that employees divulge confidential information or use their current employer’s intellectual property to work their second job;

iii) Resource/property misuse: Employees could be using company-provided laptops or using office internet/premises to work their second job;

iv) Diminished productivity in primary employment: This also includes the fact that worlers are typically expected to be available even after working hours.

Since the usual expectation and practice is that employees will devote the entirety of their time to a single job, employers are generally expected to be aware of other work engagements that an employee would be involved with.

When the performance of an employee is adversely impacted on account of side engagement or otherwise, employers have the right to place the employee on a performance improvement plan. If employers find out about other engagements, they can initiate disciplinary action, including termination, or direct an employee to end other engagements.

While the employees can challenge it, the burden of proof would be on them to demonstrate that their performance was not adversely impacted for any reason whatsoever.

Courts in India have usually upheld terminations of employment of the employees who were working dual jobs without revealing the same to their employer and/or violating their terms of employment.

In such cases, the employment contract and company policies would need to be analysed to determine the validity of the termination and whether other engagements have resulted in the disclosure of confidential information, conflict of interest, and diminished productivity, amongst others.