On May 16, 2012, in an Advice Memorandum, the Office of
the General Counsel ("GC") of the National Labor Relations Board
("NLRB") considered whether a standard policy prohibiting outside
employment violated an employee's rights under Section 7 of the National Labor
Relations Act ("NLRA"). The case is Thermal
Tech, Inc., Case No. 19-CA-068292.
In Thermal Tech, the Employer had a policy prohibiting outside
employment, commonly referred to as "moonlighting"not to be confused
with the popular 1980s TV series. The Employer's policy stated, "[w]ithout
the prior written consent of the Employer, Employee is prohibited from working
or rendering services of a business, professional, or commercial nature to any
other person, firm, or corporation without prior written consent of the
Employers have legitimate interests in maintaining policies similar to the one
in the Thermal Tech case. Outside employment may decrease a worker's
productivity, efficiency, or availability; increase risks to the safety and
health of employees, or even lead to a conflict of interest with a competitor.
There are various degrees in which an employer may protect these interests. An
employer may choose to prohibit outside employment in all circumstances, to allow
outside employment only with advanced notice and approval, or to not implement
a policy on the issue.
The NLRB has increased its efforts to enforce interference with the exercise of
Section 7 rights. Under Section 7 of the NLRA, an employee has the right
"to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection...." The activity of
"salting"-a labor tactic in which an individual who works for the
union obtains a job with an employer with the intent of organizing the
employer's workforce-is protected under Section 7.
In the Thermal Tech case, the GC determined the Employer's prohibition
on moonlighting did not violate Section 7. The NLRB has acknowledged that
employers have a legitimate reasons in preventing its employees from holding
more than one job, and the NLRB has only found anti-moonlighting policies
unlawful where there is evidence that the policy was adopted or enforced to
prevent or eliminating salting.
Lesson for employers: There are very good reasons to prohibit employees from
moonlighting. If your company chooses to implement and maintain an
anti-moonlighting policy, ensure the policy is supported by legitimate,
non-discriminatory reasons and it is evenhandedly enforced.
are written by Barran
Liebman attorneys for their clients and friends.
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