When it is discovered that an employee has been working a second job, employers may often feel betrayed. While the feeling may be real, a side job is not sufficient to justify a breakup.
In our current economy, and with the rise of available side gigs, employees have an increasing number of opportunities to invest their free time into a part-time job, some short-term contracts, some freelance work or developing their own business through various means such as social media. Because who doesn't like a little extra cash after all?
Not surprisingly, an employer who is caught up in a "work triangle" between its employee and its employee's side gig, may not only feel betrayed, but may have legitimate concerns about the potential or actual impact of that side gig on the employer's financial and business interests. Three main concerns are typically raised, although they vary and are highly circumstantial.
- Competition: Depending on the nature of the job involved, an employee may be directly or indirectly competing with the employer in contradiction of their obligations under an employment contract. For example, through a personal YouTube channel or Instagram account, an employee could be promoting a product that is in some way competing with their employer's product or soliciting its clients away.
- Usage of company resources and time: The employer may be worried that the employee is using company resources, including time, for the side job. In situations where the employee is working remotely, and may be unresponsive from time to time, the employer may begin to wonder whether company time and resources are being used for other purposes. Is the employee offering ride sharing or completing meal deliveries during working hours? Is it possible that the employee is running their side business with the company's computer while on duty? The number of possibilities are as endless as the number of available side gigs. However, suspicions are not enough to justify any type of sanction. An employer should instead implement a proper system to monitor the use of its resources and employee time, in particular where employees are working remotely.
- Performance and attendance issues: While the employee may not be contravening any employer rules, performance and attendance could be negatively impacted if the employee is unable to rest outside of regular working hours because of time spent on a side job. Again, mere suspicions that an employee is engaged in a side job may not be enough to justify discipline. It is therefore critical to have a defined performance and review process in place to assess employees' performance based on measurable variables.
Ultimately, as legitimate as the employer's concerns are, they do not automatically justify a breakup of the employment relationship. Employers need to establish the facts and determine if a side gig is having a negative impact on the employer's interests and the employee's job performance.
While it is true that an employee owes a duty of loyalty to their employer, that duty does not, in principle, restrict the type of activity an employee may do during their free time while off-duty. If the employment contract does not specifically preclude an employee from having a second job, and no other terms or policies are being breached, the employer will likely have to allow the employee to carry on with their side gig.
When a side gig is involved, employers should take a step back and evaluate the situation based on the circumstances. Like in any relationship, communication is key to avoid any misunderstanding. Expectations with respect to side gigs should be made clear at the beginning of the employment relationship, if possible, and be discussed whenever a concern arises. Employers dealing with a "work triangle" – and before taking any steps towards a breakup – should consult a lawyer.
Christine Côté is an associate with the Fasken Ottawa office. She practices in the Labour, Employment & Human Rights group, where she advises private and public sector employers on a wide range of employment and labour law issues.
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