Moonlighting: A solution for employees, a challenge for employers

Enrique Stile
Marval O’Farrall Mairal, Buenos Aires
ems@marval.com

Lucía Abadín
Marval O’Farrall Mairal, Buenos Aires
liab@marval.com

Introduction

Nowadays, there is a belief that there are ‘superhumans’ who can do everything at once, including good job performance. Even in Argentina, with the prevailing economic needs, in addition to the boom in teleworking and the increase in freelance activities, it is very common for people to have several jobs at the same time and it is also common for people to keep this information from their main employers. On top of this, it is also common for employees to use the time set aside for rest between working days for these additional jobs, a matter that is not without controversy.

Moonlighting has emerged as a huge issue in recent years, as it can lead to a fall in productivity and rampant absenteeism. Employers are not convinced by this trend in the world of work since, almost inevitably, the total workload ends up directly affecting the employees’ performance regarding the fulfilment of their duties. In addition to this, these circumstances increase the risk of information disclosure, the misuse of company resources and unfair competition, because they create greater exposure for the companies' business through the greater flows of exchange that are generated by the retention of employees in several work environments at the same time.

The situation in Argentina

It should be noted that in Argentina there is a constitutional principle of freedom of work and that, along these lines, multi-employment is permitted. However, according to the National Constitution itself, the rights contained therein are not absolute but, on the contrary, they are subject to regulations that, in some way, guide their exercise in practice.

In this regard, employees must respect the fundamental duties of an employment relationship, among which is, first and foremost, good faith. Employees must act in good faith, adjusting their conduct to what is proper for a good employee, when initiating, executing and/or terminating their relationship with the employer. In other words, the criteria of collaboration and shared objectives between the parties to the relationship must prevail.

Notwithstanding the fact that moonlighting is allowed, employees should be prohibited from taking up any other work for the duration of their working hours with the original employer or using the company´s resources and systems for a completely dissimilar purpose than the one agreed in the employment contract. A key aspect of moonlighting is that there should be no interference with the primary job, bearing in mind the concept of transparency and good faith.

To this effect and to motivate such attitudes in employees, companies could include new clauses in employment contracts or request that the employees sign an individual non-compete agreement, stating that the worker will refrain from conducting business on their own behalf or on behalf of third parties that may affect the interests of the company, unless authorisation to the contrary has been granted by the employer. Thus, there might exist for the employer a record of multiple employment situations, which will allow them to protect their resources in some way.

In a similar approach and to reinforce the principle of good faith, employees must observe all the duties on fidelity that derive from the nature of the tasks assigned and must keep confidential or secret the information to which they have access, and that requires such behaviour on their part. Therefore, it is not only convenient but also useful to include clauses on the subject in employment contracts or to require the signing of non-disclosure agreements, to protect the information that may be exposed to those who are eventually linked to moonlighting. Such a tool would promote the protection of the business, in the context of pursuing the company's goals.

Likewise, employees are expected to perform their tasks with punctuality, regular attendance and the dedication appropriate to the characteristics of the job and the resources assigned to them. In this sense, the exercise of moonlighting could be a threat to the fulfilment of this duty, since the long working hours and occupation in the time intended for the employees to rest would distort the meaning of the scheduled breaks between working days, among other things, to preserve employee productivity.

Conclusion

For this reason, in instances where employees end up providing delayed responses, their performance deteriorates to a large extent, they constantly encounter distractions or the quality and output of their work gradually falls, it could be understood that moonlighting is ultimately affecting the employment relationship.

Therefore, keeping track of employee performance becomes essential and is a key tool for the employer to detect possible non-compliance and act accordingly.

In fact, the abusive or incorrect exercise of moonlighting could lead to contractual breaches by employees, thus providing the employer with the possibility of exercising the disciplinary powers recognised by law, which includes issuing warnings, suspensions and, in the most severe cases, dismissal for just cause.