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Introduction:

The Cambridge Dictionary defines moonlighting as the practice of working at an extra job, especially without telling the main employer. Moonlighting is illegal when it involves activities that would conflict with one's primary employment. Although, such a practice is prevalent mostly in western countries like the US and Europe, especially in the IT/ITES sector. The pandemic acted as a catalyst for the effect of moonlighting in the employment sector, as it increased the chances of second employment. The ease of working from home during the pandemic made it easier for employees to take up a second job without the knowledge of the primary employer. Besides the shortage of skilled workers, new skill development and extra income are some of the major factors contributing to the surge in moonlighting across the country.

Recent Issues:

The debate over moonlighting has heated up in recent years following the mass termination of employees by Wipro for moonlighting. The company has terminated more than 300 employees. The main reason behind the termination is that the employees have been found to work directly with the company’s competitors, which is a gross violation of the integrity of the company in its deepest form. However, different employers have different stances and approach towards moonlighting. According to the moonlighting policy of Swiggy, employers can deny their consent if the additional project is highly sensitive and leverages professional know-how. However, an employee pursuing an interest or hobby is allowed by law to pursue other interests outside of work. The point to mull over is to see how the Hon’ble Prime Minister of India recently emphasised the need for flexible work practices and the effect of such decisions on the employer of the companies. 

Is Moonlighting Ethical or Unethical?

The opinion regarding moonlighting is different and divided regarding the IT sector. According to the WIPRO chairman, it is a form of cheating and therefore, unethical as it sparks the breach of confidentiality issues. Not only confidentiality but it also affects the day job leading to efficiency and productivity loss. It also involves a greater threat and risk of data leakage. There is a high possibility that the tendency may shift from moonlighting to daylighting. There is the involvement of the breach of trust and loyalty issues with the primary employer, and lastly, less priority is given to the primary employer’s work/ task and deliverability.

However, the director of Infosys has a very different opinion and considers employment as a contract between employers who pay employees for working for them for ‘n’ number of hours per day. In return, the employees get to do whatever they want after the ‘n’ hours are up. Swiggy’s Human resource head says that it is the ‘future of work’ and any employee taking the extra employment has to disclose the project or area in which he is getting involved for the second employment.

What is the Legality of the Moonlighting?

The concept of Moonlighting is not unique to Indian culture. The concept of dual employment was a part of the unskilled sector and particularly in those industrial towns where there are ample work opportunities.  Indian legislation such as the Factories Act, 1948, the Bombay Shops Act, 1946 and the Delhi Shops Act, 1954 prohibits such dual employment. 

The Factories Act, 1948 prohibits an employer from requiring or allowing an adult worker to work in the factory on any day on which they have already been working in any other factory. The OSH Code i.e. Occupational Safety, Health and Working Conditions Code, 2020 broadly has similar restriction is found in both acts, with the OSH Code limiting dual employment of workers to those working in a mine or factory.

The Industrial Employment (Standing Orders) Rules, 1946 stipulates that every worker shall not at any time work against the interest of their employer and shall not take a job in addition to their current employment which may adversely affect their employer.

The most important argument restricting and prohibiting moonlighting is the ‘implied exclusivity’ attached to the employment. Explaining it further, the employee has full rights to the skills of his employee and his working time. 

The Supreme Court of India held that a restriction on an employee of LIC's eligibility to serve as a member of a local authority is not meant to influence an individual's candidature for election. Rather, it was intended to prevent public servants from participating in other elections and thereby damaging their efficiency as employees.

Conclusion:

With the current trend of moonlighting effect in the IT industry post-covid, it is likely that the trend may also upsurge in the other sectors as well. Therefore, in order to tackle the moonlighting situation, the contract between the employer and employee must be well drafted. The points that the employer needs to take care of include in the agreement the points related to contractual protection, being vigilant and tracking the performance level of the employee, creating better cyber security protection and creating awareness in the employees. The other step that can be taken by the employees is to hire freelancers or adopt formulas such as “pay as you go” in order to restrict the effect of moonlighting. However, the question still remains the same, whether interference by the legislation/ judiciary is required to formulate the law or guidelines for curbing the practice of moonlighting? 

 References:

1. https://www.barandbench.com/view-point/the-viewpoint-out-of-the-darkness-moonlighting-and-employment-relationships

2. https://timesofindia.indiatimes.com/business/india-business/explained-what-is-moonlighting-and-is-it-legal-in-india/articleshow/93704728.cms

3. https://www.lexology.com/library/detail.aspx?g=af9cbec7-149a-4b34-8631-4f70f180dd13

4. https://news.cleartax.in/concept-of-moonlighting-and-its-legality-in-india/8455/

5. https://blog.forumias.com/explained-what-is-moonlighting-and-if-its-legal-in-india/