The NLRB Investigates an Employer's Moonlighting Policy: Without the Help of Blue Moon Detective Agency, Bruce Willis, or Cybill Shepherd

The NLRB Investigates an Employer's Moonlighting Policy: Without the Help of Blue Moon Detective Agency, Bruce Willis, or Cybill Shepherd

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 Employer."

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.

Electronic Alerts are written by Barran Liebman attorneys for their clients and friends.

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