Americans have moonlighted ever since work was invented for the apparent reason that it’s a way to earn extra money. In some cases, they have dual motives. Employers may be wondering if they must allow employees to “moonlight,” that is, have a second job in addition to their full-time job. Employees moonlight for unions as union salts, creating a dilemma for the regular employer. That was the situation in the NLRB case of Nicholson Terminal & Dock. Co. case (07-CA-187907).
There were a couple of issues involved in this case, and one concerned Personnel Handbook section III, “General Company Policies.” The section is the policy on moonlighting. It says, “Employees are expected to devote their primary work efforts to the Company’s business.” It goes on to list the type of work considered to interfere with their primary job.
- The job could be inconsistent with the company’s interests
- A job could harm the company’s image with the public or customers
- The job could require devoting such effort and time that the primary work would be adversely affected
The policy says the employee must get approval from the Company Treasurer before accepting the moonlighting job. This clearly gives the employer a chance to address a potential conflict of interest, depending on the second job the employee wants to accept.
Protecting Employee Rights and Business Interests
The question is whether this policy violated the employee’s NLRA rights. The employee was moonlighting as a paid union salt. A salt is someone paid by the union to take a job with a non-union employer the union hopes to organize. Of course, the employer wasn’t happy about the moonlighting and especially working as a union salt. It would seem a conflict of interest for an employee to work to unionize another company. Still, the employee has a protected right, per the NLRA, to engage in concerted activity.
The Administrative Judge found for the employee because she believed the rule was not well-written and restricted NLRA Section 7 rights. That decision meant requiring the employee to get permission before accepting a moonlighting job was also unlawful.
The NLRB disagreed and found the moonlighting policy was lawful. The policy was intended to ensure employees “devote their primary work efforts to the Company’s business.” The company’s treasurer and manager testified that the moonlighting rule was meant to ensure employees don’t work for a competitor and don’t work so many hours they are exhausted during their regular shift.
In explaining their decision, the NLRB made the following points.
- Moonlighting rule doesn’t impose restrictions on becoming a union member or volunteering on its behalf
- Employees would not reasonably interpret the rule as prohibiting them from joining, forming, or assisting a labor organization
- Just because the moonlighting rule could have been more narrowly written to prevent potential interpretations that may conflict with Section 7 rights doesn’t mean a reasonable employee would interpret the rule as limiting rights to employment with an outside business interest
- The rule doesn’t have the potential to interfere with the paid employment by a union as a salt, and such employment doesn’t harm their regular work
- Reasonable employees would interpret the rule as meaning not taking outside employment with a disreputable employer or not doing disreputable work
There are many mentions of how “reasonable employees” would interpret the policy. This goes back to a decision made in the Boeing Company, 365 NLRB No. 154 (2017) case, which overturned a decision made in the Lutheran Heritage case. This case led to the “balancing test” in which the NLRB first considers whether a rule, as interpreted by an objectively reasonable employee, would interfere with NLRA rights. In other words, the NLRB is supposed to consider the balance of protecting employee Section 7 rights and the employer’s right to maintain discipline and productivity in the workplace.
In essence, these decisions said that employer interests in maintaining workplace rules intended to maintain order and protect legitimate business interests should be considered. The NLRB also noted that it’s not reasonable to require too much perfection in workplace rule and policy language and fail to consider real-life circumstances and industry conditions that may dictate the need for restrictive workplace rules.
Writing Workplace Policies
When writing workplace policies, the wording matters. In fact, as one labor attorney, Katz Melinger, points out, policies intended to protect a company’s image or interests are frequently red-flagged. The main thrust of a moonlighting policy should be around workplace safety and avoiding conflicts of interest. Suggestions for developing a legally compliant moonlighting policy include the following:
- Write a moonlighting policy instead of a ban on moonlighting.
- Write the policy so it doesn’t overreach, clearly stating it’s intended to promote workplace safety and protect company interests.
- Include language that sets clear expectations the employee must meet the demands of the current job, i.e., scheduling, job duties, alertness, productivity, etc.
- Include language that says the employee could be terminated for failing to meet job expectations.
- Spell out which activities are prohibited, i.e., working with a direct competitor, soliciting company customers, sharing or using proprietary information, etc.
- Address issues like intellectual property ownership should the employee develop something of value to the employer
- Require employees to notify management before accepting the second job.
- Make it clear the policy isn’t intended to prevent employees from exercising Section 7 protected activity rights.
- Write the policy so that any reasonable employee would understand the policy objective of ensuring the employee doesn’t take employment that would adversely impact the person’s primary work.
It’s easy to invite an unfair labor practice (ULP) charge, which is why we always recommend having a labor attorney review employee policies. The moonlighting policy must be applied in a non-discriminatory fashion. You can’t use the policy to specifically prevent salting or to stop salt employees from working. It can’t be used to prohibit protected concerted activity or to discipline employees exercising their protected rights.
Words, Words, Words
When your company writes a policy, it should be based on the future ability to justify the rules and policies with documentation, if necessary. For example, a moonlighting employee’s productivity may decline, the job violates the employment contract, or you discover the moonlighting employer is (or wants to be) a direct competitor.
However, it would be best if you also considered the employee’s comments and needs. This is where employers are more likely to inadvertently create a problem by saying the wrong thing. Though you have the right to protect your business interests, the employee always retains his/her Section 7 rights. An employee comes to you to let you know he is taking a second job as a part-time salt, and you say, “You can’t help another company unionize!” You just violated the employee’s rights concerning unionizing.
One of the murky issues concerns the employee’s financial needs. Prohibiting someone from moonlighting when the person needs the money can hurt employee relations by making the employer seem callous. There is also the danger of using the policy to discriminate. Maintaining employee engagement at all times is essential when talking to any employee.
The best approach is to treat the situation like it involves unions. Follow the TIPS and FOE rules. Don’t threaten the employee, make promises you can’t keep, or interrogate the employee about potential union activity. You can ask for the facts about the moonlighting job, make an objective determination as to whether the job will be in conflict with the regular job, and explain the employer’s right to terminate the employee should productivity fall.
Train, Train, Train
It’s critical to train all of your leaders in what they can say and not say concerning unions and allowing employees to moonlight. It’s thoughtless statements, and lack of knowledge of labor law and NLRA protected rights that get employers in trouble. Take advantage of the tools Projections, Inc. offers employers to assist them with staying union-free and with leadership training.