The COVID-19 pandemic forced numerous businesses and employees to adapt to remote work. After adjusting, many businesses found that they were able to remain profitable and employees were able to remain productive, though obviously there have been hiccups for both employers and employees along the way. However, one key takeaway is that many employees learned that they liked working from home. In light of the Great Resignation and the hiring challenges facing businesses across a wide variety of sectors, many businesses have begun offering flexible work-from-home or even permanent work-from-home arrangements.
One unexpected challenge that we have seen is the rise of employees who attempt to work two full-time jobs from home, either simultaneously, or by completing their assignments for one employer early in the day and then focusing on the other employer. This trend has become so popular that it was recently covered by Forbes in the article, “The Remote Trend Of Working Two Jobs At The Same Time Without Both Companies Knowing,” and the Wall Street Journal, “These People Who Work From Home Have a Secret: They Have Two Jobs.” Such arrangements raise important questions: 1) Is it legal for employees to work two full-time jobs? 2) If neither employer notices, does it matter? and 3) What can an employer do about it?
1. Is it legal for employees to work two full-time jobs simultaneously?
Hourly Employees
For hourly employees, the answer is relatively simple. The Commonwealth Court of Pennsylvania “has consistently held that receiving pay for hours not worked or using work time to attend to personal affairs without authorization can constitute willful misconduct.” Walker v. Unemployment Comp. Bd. of Review, 202 A.3d 896, 901-02 (Pa. Commw. Ct. 2019). Such an act is often referred to as “theft of time.” See generally, Id. “An employee’s theft from an employer is willful misconduct. An act of theft disregards the employer’s interests and the standards of behavior that the employer has a right to expect of an employee.” Id. Additionally, “even a single instance of theft from an employer can constitute willful misconduct.” An hourly employee caught working a second job simultaneously has almost certainly engaged in misconduct.
Salaried Employees (non-exempt)
For salaried employees who are not exempt under the Fair Labor Standards Act (“FLSA”), the same analysis applies. A non-exempt employee is paid for time spent working and cannot meet the expectation of an employer while working a second full-time job simultaneously. Whether an employee is exempt under the FLSA is a separate analysis, but broadly speaking, executives, licensed professionals, and outside salespeople are often considered exempt from the provisions of the FLSA, including overtime pay.
Salaried Employees (exempt)
The trickier analysis applies to exempt employees under the FLSA. An exempt employee is, on one hand, always on the clock, while on the other hand, is often given the freedom to complete tasks by the deadline, rather than to be continuously occupying a post. It is possible that an exempt employee could finish all of the tasks expected in a given day and still be able to complete all of the tasks expected from another employer.
In Pennsylvania, “[a]s agents of their employer, employees owe a duty of loyalty, which requires them to act solely for the benefit of the employer in all matters connected with their employment.” McCarl’s Servs. v. Dargenzio, 249 A.3d 1183 (Pa. Super. Ct. 2021). “To prevail on a claim of breach of fiduciary duty of loyalty, an employer must demonstrate that his employee acted for a person or entity whose interests conflicted with the employer.” Id. However, this duty of loyalty is usually raised in the context of the employer’s industry. See Bert Co. v. Turk, 257 A.3d 93 (Pa. Super. Ct. 2021)(“[w]e hold that an employee owes his employer a duty not to work as a corporate spy and recruiter for competitors, even without a written contract”).
Essentially, Pennsylvania law prohibits employees from acting against the interest of their employer. It does not appear if Pennsylvania law has answered the question of whether an employee has violated his/her duty of loyalty by working for another employer in a different sector simultaneously.
It is possible that certain exempt employees may be able to hold two full-time jobs simultaneously in the absence of an employee policy or contract prohibiting such an arrangement. While it is quite possible that the Unemployment Compensation Board of Review would agree with the employer that such an agreement disregards the employer’s interests and expectations, that specific case has not yet been made.
2. If neither employer notices, does it matter?
Hourly and Non-exempt Employees
Yes. For hourly and non-exempt salaried employees, Pennsylvania law is very clear: An employer has the right to expect that an employee is working for the employer while the employee is being paid, and that theft of time “disregards the employer’s interests and the standards of behavior that the employer has a right to expect of an employee.” Walker v. Unemployment Comp. Bd. of Review, 202 A.3d 896, 901-02 (Pa. Commw. Ct. 2019).
Salaried Employees (exempt)
For exempt employees, the same policy consideration comes into play, regardless of whether the employee is able to satisfactorily complete his/her tasks for both employers. In most circumstances, the employer will expect the complete attention of its exempt employees. Indeed, when the employer encounters a situation requiring additional effort by the employee, and the employee is unable to finish the task, the employee may not be able to explain the failure without either admitting to the other job or deceiving the employer.
3. What can an employer do about two-timing workers?
Establish Clear Employment Policies
We recommend that all employers have a specific policy addressing exclusivity of employment. Put simply, while the law would support the employer in the discharge of an hourly or non-exempt employee who was caught working a second job simultaneously, the best practice for an employer is to include an exclusivity policy in the employee handbook, policies and procedures manual, or any other documents that set forth the employer’s expectations.
This exclusivity policy can be extended further, however. Many hourly or non-exempt salaried employees work second jobs after the conclusion of their first job, called “moonlighting,” which does not violate the law. Many employers do not have an issue with moonlighting at all, or with moonlighting in certain circumstances. Some employers do not have an issue with even exempt employees moonlighting. However, certain employers do not want their employees to moonlight because the employer may have inconsistent hours or they want to make sure their employees are well-rested upon arriving to work.
4. Pennsylvania Employment Policy and Handbook Updates
Any employer concerned that their employees may be distracted by a second job should work with their legal counsel to draft a moonlighting policy that captures the employer’s intentions and expectations. The best practice for any employer is to have clearly defined rules and expectations so as to avoid an unpleasant surprise before an Unemployment Compensation Referee or Board of Review, or even more costly, in a wrongful discharge suit. A violation of an employer’s policy offers a much better position for the employer than relying upon only case law.
Pittsburgh Employment Attorneys
Contact attorney David C. Weber at 724-776-8000 or by email at dweber@lynchlaw-group.com today to discuss whether your Pennsylvania employee handbook or manual needs to be updated to address the new challenges inherent in remote work.
