Open Access Research Article
“MOONLIGHTING – ITS MEANING, PREVALENCE IN THE TECHNOLOGY WORLD, AND PROVISIONS” BY: ADITYA SWAROOP & ARUNDATHI MAMIDALA
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Article Details
“MOONLIGHTING – ITS MEANING,
PREVALENCE IN THE TECHNOLOGY WORLD,
AND PROVISIONS”
AUTHORED BY:
ADITYA SWAROOP & ARUNDATHI MAMIDALA
Designation:
5th Year B.A. LL.B(Hons.) Student
Abstract
Moonlighting presents to us a modern dilemma. Moonlighting
refers to employees holding onto multiple
jobs at the same time. While such an employee holds onto multiple jobs, they
are provided the opportunity to grow
in their professional sphere and increase their finances, they would have to strike a balance between
multiple jobs and other responsibilities outside their professional sphere.
But there is more to it than just this. Moonlighting poses
several ethical, moral and legal challenges before us. Moonlighting is not an ethical concept;
it challenges the employee’s
morality by making them question
their loyalty towards
each of the companies they are working
at.
It also tires them out which affects
their performance which might become
an irreversible plight
for them later on. The employee feels like it is a vicious cycle from
which they would have no relief and
they are stuck in the loop forever. Thus moonlighting is a modern day dilemma
which is a problem both ways
for the employees and the company.
An Introduction to Moonlighting
Before we go on to understand how much of a concern
moonlighting is for Indian
employees and the Indian companies we first have to understand what moonlighting exactly
means.
Moonlighting simply means taking up another job during the
continuance of your main job without intimating the employer of your main job. This other
job is usually a secondary
job that is temporary and can be
referred to as a side job as well. It holds a nature similar to that of a part- time job.
Moonlighting does not exactly have any relation to the words
“moon” and “lighting”. Moonlighting is when one person engages
in any work that is sort of a freelancing, that helps them
to generate money for their benefit. And moonlighting is just a term
assigned this kind work. But
as a result of such work,
such an employee is neither holding
onto the identity attached to him through the main
job, nor is he having any identity to the secondary job. His loyalty
towards both jobs becomes a question for discussion
at this point.
Moonlighting is having
two jobs at the same time
and thus is also referred
to as dual employment. Moonlighting poses several concerns
for such an employee who juggles between jobs. A moonlighting
employee’s access to the data and files
of the primary job makes it difficult
to protect the privacy and confidentiality in relation to the secondary
job. Specifically, if it is across competitor companies, it becomes
a huge risk to have such an employee
on board.
But is also important to consider why people take up two jobs at the same time, that is an additional job in
addition to their main job. The answer is not
that simple, it is not
just the greed
or lust to earn money. Individuals require money to meet their expenses,
pay off their loans, debts, insurances, and also to earn experience which
is much needed for the professional growth.
The pandemic proved to be
a turning point for people who were trying to sustain themselves in all
the ways possible. And moonlighting became a prevalent way to sustain
their livelihood. In order to make
ends meet, people took up several jobs to meet the costs. Often these jobs
could be done from the comfort of
their homes, making it perfect for them to juggle several of them at the same
time.5
Several companies insert
anti-moonlighting clauses to protect themselves (the company) and prevent employees from taking up such
kind of work. This kind of work makes employees question their own employees and their ethics towards the
company on which they hold their main job which is often their primary source
of income.
Moonlighting has
definitely affected the market for employees to obtain job. If an employee engages in moonlighting, then that
employee would end up taking the job of another employee for whom that work could
have been the primary source of income. And thus, such an employee might hold onto several such jobs
decreasing the number of jobs available and not presenting others a chance
to secure it.
Therefore, moonlighting
is a double-edged sword. Some
companies allow for it, Swiggy is one such example, while some companies do not
allow for it, IT companies like Wipro and Infosys, which have warned
their employees against the same.
The legality of moonlighting and ethicality of moonlighting is another issue to be
discussed with the growing number of employees engaged in such work.
Moonlighting In The Technology World
Moonlighting in the technology industry in India refers to the practice
of professionals working
on additional projects
or part-time jobs alongside their primary full-time
employment. This phenomenon has gained prominence in recent years and is influenced by various factors
unique to India's
tech ecosystem.
Here is a
detailed description of moonlighting in the technology industry in India:
1.
High Demand for Tech Skills: India is known for its large pool of skilled tech
professionals, which attracts a significant demand for their services. Many
tech workers find themselves in a position where their skills are in demand for
multiple projects, both full-time and part-time.
2.
Freelancing Opportunities: The rise of online freelance platforms and the gig economy
has made it easier for Indian tech professionals to take on side projects. Many
professionals leverage these platforms to offer their expertise to a global
clientele while working full-time.
3.
Financial Motivation: Moonlighting is often driven by financial incentives. Extra income from
side projects can supplement a tech worker's salary, helping them achieve
financial goals or support their families.
4.
Diverse Skill Set: Tech professionals often have a diverse set of skills. Moonlighting
allows them to explore different areas of interest or gain experience in new
technologies, which can ultimately enhance their career prospects.
5.
Start-up Culture: India has witnessed a surge in start-up activity. Working for a start-up
is often demanding, and employees might take on side projects to explore
additional income sources or build their own entrepreneurial skills.
6.
Flexible Work Arrangements: Many tech companies in India are increasingly adopting
flexible work arrangements, allowing employees to manage their time more
effectively. This flexibility enables tech workers to engage in moonlighting
without conflicting with their primary jobs.
7.
Global Opportunities: With remote work becoming more common, Indian tech professionals can
work with clients and companies from around the world. This global exposure
broadens their network and provides access to a broader range of projects.
8.
Challenges and Ethical Considerations: Moonlighting can pose ethical challenges, especially
if it conflicts with an employee's primary job. Some tech companies in India
have policies against moonlighting to prevent conflicts of interest or issues
related to data security.
9.
Legal Aspect:
While moonlighting is common, there can be legal implications. Employees may
need to disclose their side projects to their employers, and in some cases,
companies may have non-compete clauses in employment contracts that limit
moonlighting opportunities.
10.
Balancing Act:
Juggling a full-time job and moonlighting projects can be demanding. Many tech
professionals in India find themselves balancing tight schedules and deadlines,
which can lead to burnout if not managed properly.
11.
Building a Personal Brand: Moonlighting can be an opportunity to build a personal brand
and portfolio. This can be especially valuable for professionals looking to
establish themselves as thought leaders or experts in their respective fields.
12.
Skill Upgradation: Moonlighting often encourages professionals to stay up to date with the
latest trends and technologies in the industry, as they seek to remain
competitive and deliver value in their side projects.
Wipro Chairman Rishad Premji stated
recently that the company discovered 300 of its employees were working for one
of its competitors at the same time, adding that such incidents were dealt with
by terminating their employment.
Many companies have a finance
department that checks UAN numbers of employees on the EPFO employer dashboard
to see if they are associated with other companies.
Even at Google, any code written by a
developer during his or her employment will be owned by Google.
Why
are people moonlighting?
·
Firstly,
Work From Home saves employees a lot of time. They no longer have to travel a
great distance in hectic traffic to get to work. And all of the time you spend
in the workplace sitting down and chatting with everyone and everything is gone
after Work From Home.
·
Layoffs
are becoming more and more common across industries so now the employees
started to think “Does it make sense to devote all of my time to just one
company where one day my boss can come into the office and suddenly says, guess
what? no more job.”
·
And
traditionally growing one’s income by being promoted may look less attractive.
Laws and Contract
Some companies have responded to the
issue by tightening the reins. Earlier this month, Infosys, India’s second
largest IT services company, warned its employees that “dual employment
is not permitted”, stating that any violation of contract clauses could trigger
disciplinary action. Some companies are checking up more on employees, either trying to bring workers back
to the office, or running productivity checks to identify possible slackers.
Others are responding differently. In
a tweet, Tech Mahindra CEO CP Gurnani said
that it was “necessary to keep changing with the times”, adding he welcomed
disruption to ways of working. Food delivery company Swiggy's human resources
head Girish Menon told India's Economic Times that moonlighting was the “future of work”, and that with the right policies in
place, employees would be responsible and declare their second jobs.
IT industry veteran and former
director of Infosys Mohandas Pai pointed out that low entry-level salaries in the
tech industry have contributed to moonlighting. Gopi says that if companies ensure
good pay and steady career development, in ways that motivate and enrich
workers, they might not seek out other jobs. “Of course, there are employees
who don’t moonlight just for the money but also for sampling different skills,
and that cannot be really prevented,” he adds.
Diya found it easy to hold down two
jobs during the pandemic, but she faces being recalled to the office soon. Her
plan is to watch and wait; ideally she plans to continue both roles and see
what her company offers her in terms of growth and advancement.
Her second job is not just about
money, but the “satisfaction of using my diverse skills and being appreciated
for that”, she says. And, despite the recent debate, she sees no reason to give
it up yet. ”As long as I am discrete and give my best both jobs, I don’t see
what has changed.”
The companies will have the leverage,
that they can fire someone who does moonlight because they have 100s of other
people lining up to the interview and the employee’s leverage is, “Okay fire me
because I have two other companies I’m already working on” I think it’s a game
and if you don’t play you’re going to get played. Moonlighting is an open
secret; everybody knows everybody else does it but nobody talks about it.
In conclusion, moonlighting in the
technology industry in India is a multifaceted practice influenced by the
country's vibrant tech ecosystem, the pursuit of financial goals, and the
desire for personal and professional growth. While it offers many benefits, it
also comes with its set of challenges and ethical considerations that tech
professionals need to navigate effectively.
Provisions in Labour laws
Moonlighting is not specifically
addressed by law in India. However, it might be vulnerable to legal action under a number of laws, such as the Industrial Disputes Act, the Shops and Establishments Act, and the Employment
Contract Act. Dual employment is permitted by the Industrial Employment (Standing
Orders) Act of 1946. According to Schedule I-B of the Industrial Employment (Standing Orders)
Rules, 1946, an employee cannot operate against the interests of the industrial establishment or accept a job that
could jeopardise their employer's interests.
On the other hand, dual employment is forbidden by Section 60 of the Factories
Act of 1948. A mature worker cannot
be forced to work in a factory
on days when they have previously worked at another place of employment,
under the Factories Act of 1948. The Factories Act and the Occupational Safety, Health and Working Conditions (OSH) Code ban similar things;
however, the OSH Code limits its application to
concurrent employment in a mine or factory.
Similarly, employees are prohibited
from working in two or more establishments for longer than is permitted by law under Section 9 of the Delhi Shops and Establishments Act, 1954. However,
because it relates
to the amount of time an employee
may be engaged in work, although while this clause appears as a restriction on dual
employment, it might also be interpreted as a restriction on overtime work.
Under the Industrial
Disputes Act, a worker may be subject to disciplinary
action if it appears that they are moonlighting. However,
the extent of the disciplinary action depends on the type of work and
how it impacts the main job.
Case laws
Indian courts have, for the most part, upheld firing an employee for doing two jobs or moonlighting.
For example, the Punjab and Haryana High Court supported the firing of an employee for allegedly engaging in
parallel work, as claimed by the employer, in the case of Gulbahar v. Presiding Officer Industrial
In a similar fashion, the Bombay High
Court held that a factory worker's dismissal under Section 60 of the Factories Act, 1948 for engaging in double employment was reasonable rather
than harsh because
the worker was depriving his employer of the best of his services by working two jobs, as it
is humanly impossible to work consistently and at the same quality and
efficiency for long periods of time.
In State of Punjab v. Ram Lubhaya
Bagga, the Supreme Court decided that it is misconduct and subject to disciplinary action when an
employee performs a second job that clashes with their primary role.
The Supreme Court stated as follows
in Manager, Pyarchand Kesarimal Ponwal Bidi Factory vs. Omkar Laxman Thange and Others (AIR 1970 SC 823): "The general rule in respect of relationship of master and servant is that a
subsisting contract of service with one master is a bar to service with other master-unless the contract otherwise provides
or the master consents."
In the case of Government of Tamil
Nadu vs. Tamil Nadu Racecourse General Employees Union (1993 ILLJ 977 Mad), the Madras High Court held, citing
the previously mentioned Supreme Court
decision, that "there may not be any prohibition to have dual employers if
the contract otherwise provides, or the master consents."
Present scenario
and way forward
Moonlighting has increased recently
as a result of the epidemic, and different businesses from different
sectors have taken
varying stances on how to address this problem. For example, publicly
available data suggests that some companies have permitted workers to
take on extra projects or label
certain jobs as "side gigs" within the company after hours in order
to expand their skill set, while others
have outright banned
dual employment and have fired workers who were discovered to be engaging in
moonlighting as a breach of their employment agreements.
Employers face legitimate concerns
and grey areas when dealing with employees who engage in dual employment, such as non-compete agreements, confidentiality, ownership
and assignment of intellectual
property, and contribution to employment social benefit schemes under laws like
the Employees' State Insurance Act of
1948 or the Employees' Provident Funds and Miscellaneous Provisions Act of
1952.
Employers that wish to stop their staff from working two jobs could put a clear ban on this practice in their employment contracts by
including an exclusivity clause that clearly states that violating the clause would be considered misconduct. Two aspects
need to be considered while drafting the exclusive
clause. First and foremost, workers should be forbidden from taking on
additional jobs for the whole term of their
contract with the company, not only during
working hours. Employees
could accept additional engagements during their off-work hours if there was an exclusivity clause
that only applied during working hours. Second, the ban on other engagements
need to cover consulting and advice contracts
in addition to employment agreements. The ban may be expanded
to include directorships, shareholding, etc. when appropriate.
Any
kind of moonlighting would violate the previously mentioned
exclusive clause. Therefore, in the event that an employee is discovered to be moonlighting, the employer is entitled to take
appropriate legal action for breach of contract, which may include firing the
offending employee for good reason.
In cases when companies wish to allow
moonlighting, they should make sure that there is a clear policy that specifies the boundaries of
what constitutes acceptable behaviour for employees. The following are important topics that the policy ought to regulate:
1.
Application:
Businesses may get concerned if they allow senior staff members or workers on
private projects to take on additional obligations on the basis of their job
descriptions or duties within the company. As such, it would be crucial to
ascertain whether or not any employees of the organisation are permitted to
engage in other business ventures.
2.
Procedure:
It is essential to maintain transparency to make sure that the authorization to
work a second job is not misused. As a result, businesses must to make clear the
procedures for employees to accept second engagements; for example, whether
they must get prior consent or need to notify specific individuals, etc.
3.
Engagements
allowed: The policy should specify the kinds of engagements that workers are
allowed to take on and ensure that their duties to their employers do not
conflict with one another. Allowing moonlighting that does not harm a company's
interests specifically is one strategy to stop moonlighting that does. As a
result, it's imperative to specify the parameters of acceptable interactions.
In connection with this, employers need to make it clear to workers what kind
of commitment they can make to their second engagement, whether they can use
company property and resources for it, how IP created for another company will
be handled if office space is used, etc.
4.
Protecting
proprietary information: Since this will be the main concern of any employer
who permits moonlighting, special restrictions should be placed on employees'
use and disclosure of employer proprietary information.
Legal relationship type: As
previously mentioned, having multiple employers can cause both practical and
legal issues for the employee. As a result, companies must to outline the
kind of legal connection that workers can establish with respect to
their subsequent activities (such as employment or consulting).
Scope
The scope of moonlighting in India is
broad and multifaceted, touching upon various aspects of the labor market,
economic development, and social well-being. Here are some key dimensions of the scope
of moonlighting in India:
1.
Economic Impact: Moonlighting can significantly impact
the income and financial stability of individuals. Understanding its scope is essential for assessing its contribution to poverty alleviation and income diversification in the country.
2.
Employer-Employee Relations: Employers need to consider
the implications of moonlighting for their workforce, including issues related
to productivity, conflicts
of interest, and the potential
for overwork.
3.
Informal Economy: Moonlighting often takes place
within the informal
economy, which plays
a significant role in India's labor market. Recognizing its scope is
essential for labor market policies and regulations.
4.
Skills Development: Moonlighting can provide
opportunities for individuals to acquire new
skills and knowledge. Recognizing the scope of moonlighting in skills
development can inform policies aimed at enhancing human capital.
5.
Regulation and Policy: Policymakers need to understand the extent and nature of moonlighting to formulate
regulations and policies
that strike a balance between
supporting individuals' financial
needs and maintaining the integrity of the formal labor market.
6.
Social Well-being: Moonlighting's impact on
work-life balance, mental
health, and overall
well- being is an
important aspect to consider in its scope.
7.
Regional Variation: The prevalence and implications of
moonlighting can vary significantly across
different states and regions in India. Recognizing these variations can inform
targeted interventions.
In conclusion, moonlighting in India
is a multifaceted and complex phenomenon that deserves attention from policymakers, employers, and researchers. Its
scope extends beyond the simple act of
working multiple jobs and encompasses economic, social, and regulatory
dimensions that can have far-reaching implications for the country's labor market and the well-being of its workforce.
Thus, Moonlighting, the practice of
holding multiple jobs or engaging in additional employment outside of one's primary occupation, is a
complex and multifaceted phenomenon with both
advantages and disadvantages. Here is a concise conclusion on moonlighting:
Moonlighting can offer several
benefits, including:
1.
Supplemental Income: Moonlighting can provide individuals with extra income, helping them meet financial goals, pay off debts,
or improve their quality of life.
2.
Skill Diversification: It offers the opportunity to gain new skills and experiences that may enhance
one's career prospects or
personal development.
3.
Risk
Mitigation: Diversifying income sources can reduce financial
vulnerability in the face of job loss or economic instability.
However, moonlighting also comes
with some drawbacks, such as:
1.
Burnout and Overwork: Juggling multiple jobs can lead to burnout,
fatigue, and decreased
productivity in both the
primary and secondary roles.
2.
Conflict of Interest: Moonlighting can create conflicts
of interest, particularly in professions with ethical
or confidentiality considerations.
3.
Reduced Work-Life Balance: Balancing work
commitments can strain
personal relationships and limit the time
available for leisure and family.
In conclusion, moonlighting is a
strategy that should be carefully considered, taking into account the individual's unique
circumstances and goals. It can be a valuable means of
achieving financial security and personal growth but must be
managed thoughtfully to avoid the potential downsides associated with
over-commitment and reduced
work-life balance.
Conclusion
Moonlighting means taking up a second
job or multiple other work assignments apart from one’s full-time job. Companies have opposed the practice, saying
that employees doing multiple jobs can impact their productivity.
Moonlighting has become a topic of
debate in the IT industry as working from home became the normal norm during the Covid-19 pandemic,
which is believed to have led to a rise in dual employment.
However, Indian IT firms are divided
when it comes to moonlighting. For some, it’s unethical while others call it
the need of the hour.
Tata Consultancy Services' chief
operating officer (CFO) NG Subramaniam has termed it an ethical issue. Infosys
has also warned its employees against taking up a second
job without letting
the company know. In one of the recent emails sent by the HR department
to employees, Infosys highlighted
that all its employees must read their employment contracts before taking up an alternative job. In fact,
the company also warned employees
of termination if they take up a second job during or post-working hours. On September
15, IBM India MD Sandip Patel called moonlighting unethical.
Meanwhile, Tech Mahindra CEO CP
Gurnani said he could be open to the practice if it helps employees
make extra money.
"If you actually look at the definition of moonlighting, it is having
a second job secretively
I'm all about transparency. As a part of transparency, individuals in
organizations can have very candid conversations,"
Premji said at an event, reiterating that current employees working for rival
firms are a "complete
violation of integrity in its deepest form".
Mohandas Pai also disagrees with
Premji on the issue. The former director of Infosys does not consider
moonlighting “cheating”. “Employment is a contract
between an employer
who pays me for
working for them for 'n' number of hours a day. Now what I do after that time
is my freedom, I can do what I want," Business Today
quoted him as saying.
Article Information
“MOONLIGHTING – ITS MEANING, PREVALENCE IN THE TECHNOLOGY WORLD, AND PROVISIONS” BY: ADITYA SWAROOP & ARUNDATHI MAMIDALA
Authors: ADITYA SWAROOP, ARUNDATHI MAMIDALA
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/05/15
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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