Moonlighting is the buzzword of late in the Indian tech industry and has become the subject of a greater debate. To begin with, what’s moonlighting? It is the practise of working a second job during or after the primary job’s working hours. So why is it in the news once again? Global tech major IBM, which employs over a lakh people in India, has termed “moonlighting” an unethical practice. IBM’s Managing Director for India and South Asia has said that “notwithstanding what people can do in the rest of their time, it is not ethically right to do moonlighting.” IT giant Infosys has also warned its employees against dual employment, saying it could lead to termination. Wipro chairman Rishad Premji has said that “such behaviour by employees is simple, plain cheating.”
The problem, as we see it right now, is that certain IT companies have come out with these kinds of emails heavily targeting the employees. The reason is that people are now working from home, and there are no adequate checks and balances to ensure that the employees are actually working during those hours and giving their time to the work of the company. So their perceived productivity has begun to decline, whereas working from home should increase productivity because the employee is not travelling to and from work, and thus they are active and fresh. They have more and better time to focus on their work rather than travelling and wasting time. As a result, a work-from-home culture should improve staff efficiency, but the IT industry is experiencing a decline in productivity rather than an increase. People are moonlighting; they are taking on two jobs at a time, and as we have seen in one instance, somebody has taken on seven jobs at a time, so therefore, companies are afraid that not only will they lose their data but their information may be compromised.
As far as the labour laws are concerned, there is no bar on taking on more than one job; however, nobody is allowed to work for more than eight hours, and thereafter, if you are working for longer than eight hours, you are entitled to some kind of compensation in terms of overtime. The legal position is that if someone wants to work another job after office hours, he can do so, except in government jobs, where there is a contract that states you must work 24×7 and be available to the government. After working in an organization, if one works in a similar kind of organisation after office hours, it may result in a conflict of interest, which is not permissible and is unethical. If you do not have that kind of efficiency or productivity level after office hours or working for 8 hours, it will certainly be reflected; however, this compromise in efficiency or productivity can be evaluated hugely by a large number of methods, and on the basis of that, you can take action against the employee. Every organisation has to set its own policy depending upon the kind of work they are discharging, the kind of work they are doing, and the kind of employee they have, and maybe within the same organization, for class III employees, one can allow moonlighting, but maybe for class I and class II employees there may be some kind of restriction. Even if moonlighting is permitted, I believe that it should be done on a piece of paper in a very transparent manner, that everyone who is taking on more than one job should declare upfront that he is taking on one more job, and if it is permissible, the employer may allow subject to certain conditions.
The issue of moonlighting may also be determined through the covenants of the employment letter. There are terms and conditions of employment in the employment letter; if the terms of employment state that you cannot work for another organization, this is clearly a violation of the terms and conditions of the contract, and action can be taken against the employee. But, in their spare time, suppose someone takes a 2-4 hour job, and if he has obtained permission from his employee, this is certainly possible, and many such organisations allow it. The inherent spirit of the labour law states that you cannot take up a full-time job because if you do, you can be asked to work for 8 hours, and 8 hours means 16 hours a day. This is not feasible, and it’s not in the interest of the worker’s health and safety. So what is being said is that if somebody is thinking about taking up a temporary job after office hours, he should be allowed, but there should be some kind of permission from the employer that he is going to take it up so that it does not result in a conflict of interest and is not detrimental to the interests of the organisation where he is a primary employee.
Certainly there are disparities that have led to this trend, which picked up especially during the pandemic. But the larger fact is that with the right checks and balances, perhaps some amount of loosening can happen, and where there is suspicion of a data breach, there can be adequate checks and balances that can be put in place. Some kind of loosening is something that we may see in the future because if this is going to pick up and there are companies like in other countries that allow moonlighting to some extent, whether that can be adopted in India also is something that we’ll have to wait and see.
(The author is an advocate by profession)
