Let's take a look at why employees are choosing to moonlight and what employers can do to prevent it
The IT industry has woken up to the buzz of moonlighting which Rishad Premji, Wipro's executive chairman, termed as cheating by employees. This article throws light on why employees are doing so and what employers can do to prevent it, apart from the behavioural and legal aspects of this dual employment.
A person holding more than one job outside the normal working hour without the knowledge of the principal employer can be defined as moonlighting. This might be to add up to your income or keep yourself meaningfully engaged or make the best utilisation of your talent and passion. It’s a regular practice for doctors consulting beyond working hours, teachers engaged in coaching, consultants and freelancers working for multiple firms, and employees getting involved in artistic creative forms such as volunteering, music, singing, drama, theatre, social media content creation and so on. However, the problem comes when you are working under two formal legal contracts and working for your rival company as well.
Moonlighting is not completely prohibited under the law in India. Section 60 of the Factories act 1948 prohibits the double employment of adult workers in factories. As per section 2 (s) of the Industrial Disputes Act 1947, or section 2(zr) of Industrial Relations code 2020, the definition of ‘worker’ means any person employed in any industry to work for a reward, whether the terms of employment be expressed or implied. Though many employers express the contract of employment prohibiting dual employment, including debarment of joining the competitor, not to work for another employer during your allowed rest time when the employee is expected to take care of the physical and mental wellbeing and return to work to remain productive, is implied terms of employment. When a service certificate is issued to an employee as per the Industrial Employment Standing Order Act, 1946 (which also covers the IT and ITES sector) infers that such employee was gainfully employed with the employer from the start date of employment to the end date of employment, not eight hours in a day. Section 65 of the Bombay Shops and Establishment Act, 1948 also prohibits double employment that neither the employee will work, nor any employer will permit the employee to work in any establishment when the employee is on leave or given a holiday. Similarly, Section 9 of the Delhi Shops and Establishment Act 1954 states that no person shall work about the business of an establishment or two or more establishments or an establishment and a factory above the period during which he may be lawfully employed. In the case of Gulbahar vs Presiding Officer Industrial Tribunal (2016), the Punjab-Haryana High Court upheld the dismissal of the petitioner on the ground of dual employment. Similarly, a Delhi District court upheld the dismissal of the employee under dual employment in the case of Metso Paper (India) Pvt Ltd vs Mr. V. Gokulakrishnan on 6 September 2019.
Also read: Should IT companies make peace with moonlighting?
Moonlighting may be an escape route to avoid disengagement, learn new things, and develop your passion while remaining competent and productive is essential. While moonlighting can take a toll on the physical and mental health of employees, leading to burnout, the very purpose of rest hours, holidays and leave is lost. It will also be threatening for the employer to lose the knowledge, data and technology to the competitors.
While companies like Swiggy have come up with a moonlighting policy allowing employees to moonlight in a role which does not have a conflict of interest and does not impact productivity, it may be a new dawn for future employment. Companies may create an exclusive clause for the prohibition of moonlighting as per the employment contract and incorporate the conflict-of-interest clause but legal restriction without trust and engagement can’t yield results.
Manoranjan Dhal, Professor – OB and HR, Indian Institute of Management Kozhikode.