Normalising and Formalising Moonlighting

Abstract

In recent days, aye or nay for moonlighting has become a hot potato. While some have insisted that moonlighting implies cheating and hence, attracts penalty, others feel that it is just another offshoot of the gig economy which must be readily accepted and assimilated into the work culture. But in all of these debates, what has been on the centre stage is simply the issue of conflict of interests, something that employers are affected by and hence, worried about. What this debate has very comfortably sidelined is “the worker”, their time, and their motivation for giving up leisure & taking up additional work. In this article, I try to drive the discourse on moonlighting towards “the worker” and argue whether ‘after hours’ can be claimed and colonised by their employers. I finally argue that the need of the hour is policies which are as flexible as work is rapidly becoming.

Introduction

In quite a strong contradiction to the popular socialist slogan of ‘8 hours for work, 8 hours for rest, and 8 hours for what we will’, modern employers persistently try to invade and colonise the territory of ‘8 hours of what we will’. This atrocious encroachment of ‘after hours’ became so prominent that the French Government (in 2016) and the Portuguese Government (in 2021) prohibited employers from requiring their employees to be available for workplace communication outside of regular work hours or during their time off, cementing employees’ “right to disconnect” (Collins, 2016; ETHRWorld, 2021). 

This should help us understand two very simple yet important facts — (i) workers have the exclusive discretion over ‘the rest of their time’ and hence, (ii) employers cannot ‘boss around’ their employees after office hours. 

Nowadays, some workers choose to fill ‘their’ after hours with additional work, what some may call a ‘gig’. This is the basic concept of moonlighting — taking up one or more work assignments ‘in addition’ to regular office work. In September 2022, Wipro grabbed the headlines for firing 300 employees for moonlighting. This step not only reverberated Wipro Chairman Rishad Premji’s earlier statement, “…moonlighting…is cheating. Plain and simple” (The Hindu, 2022) but also made it clear that the said company had/s no place for any employee who chooses to work directly with rivals while being on Wipro payrolls. While there’s no denying that such unethical behavior should not be endorsed at any cost, Premji also went on to elaborate that as part of transparency, individuals can have candid and open conversations around, say, playing in a band or working “on a project over the weekend” (The Hindu, 2022). 

Who ‘Owns’ Your After Hours?

In fact most companies feel that workers are ‘obligated’ to apprise them about ‘what they do after hours’. In August 2022, Swiggy, in a ‘industry-first’ policy on moonlighting, ‘allowed’ its employees to take up gigs or projects outside of their regular employment at the company, ‘during the hours away from work’ (Singh, 2022). 

While it may look like the two companies have taken two strikingly contrasting stands on the matter of moonlighting, what is implicit in both of their ideation of moonlighting is that workers are regular, paid employees even ‘outside’ the office, ‘beyond’ the office hours, and on the weekends. That employers ‘own’ and hence, can ‘demand’ an explanation for what a worker does on the weekend, in their private time. This must stir a rather uncomfortable conversation — who owns ‘your’ weekends? Who can lay claims over the ‘rest’ of ‘your’ time? Who has the right over ‘you’ outside the perimeter of your workplace? Do workers physically leave the office but never leave their work? What does ‘8 hours of what we will’ mean in 2022?

Contract of Service v/s Contract of Slavery

Even if employers were to scrutinise their employee’s off-duty conduct, they would first have to prove that there exists some relationship between that off-duty conduct, the employee’s regular job, and/ or the employer’s business, and the relationship is such that it jeopardises the employer’s interests. But to want to keep an eye on and whip the worker for ‘anticipated’ or ‘perceived’ misconduct outside work is a clear indication of the employer’s desire to continue intrusion into the worker’s life, outside their work desks. This essentially deprives the worker of their right to live their lives as free individuals. It seems as if the company had ‘bought’, not the worker’s services for 5 days of the week, but the worker him/ her/ them-self for life. This dispossesses workers of their free will & privacy, and reduces them to the status of bonded labor, who must remain faithful to their master all the time, all their life. This is substantiated by a Supreme Court observation which held that “The employer has hardly any extra territorial jurisdiction. He is not the custodian of general law and order situation nor the Guru or mentor of his workmen for their well-regulated cultural advancement. If the power to regulate the behaviour of the workmen outside the duty hours and at any place wherever they may be was conferred upon the employer, contract of service may be reduced to contract of slavery” (The Hindu, 2022). While the said observation was not made with reference to moonlighting, it may however be used to contextualise how the law may view cases pertaining to moonlighting. 

Making ‘Workers’ the Focus of the Debate

Now while one may be tempted to think that the ‘motivation’ for securing additional work ‘must be’ additional income, the ‘need’ for that additional income must be assessed. Is it pure greed or is it to pay bills which their regular salary ‘now’ fails to cover? The reasons for becoming available on weekends or after-hours to shoulder more burden may also be to gain/improve new skills (like coding), work on a passion project (building one’s own startup), engage in or develop new hobbies (writing blogs), or simply helping a friend out (editing travel vlogs). It’s not always a cleverly calculated, malicious attempt to pit one’s regular employer against their rival and then profit from their pain. The fact that workers are becoming over-employed via non-standard forms of employment may be a stinging symptom of underpayment, saturation, and insecurity in their current jobs.

Thus, the larger debate on moonlighting should be about workers, their time, and what compels them to give up leisure and take up more work. Employers should treat this as an opportunity to understand ‘what the workers actually want’ and how they can best support the workers because their labour helped to build the very capital that is now being used as a leash to control them. To treat workers who moonlight as hardcore criminals just goes on to highlight the poor understanding that modern employers have of their employees. Even the Minister of State for Skill Development & Entrepreneurship and Electronics & IT, Mr. Rajeev Chandrasekhar, opined that moonlighting was a case of companies and corporates not realising the deep structural shift in the minds, attitudes, and confidence of the young Indian tech workforce. He emphasized that there’s been a big shift in the psychology of the current workforce which the companies must realise to leverage the shift effectively while adding that putting [any sort] of lid on aspirational workers’ dreams was “bound to fail” (Khan, 2022). 

Moonlighting as a Disruption

As technology is fast revolutionising the world, it is also shaking up the world of work. Labor is no longer just another means of production; but it is rather first in line to seize the opportunities created by the other means of production. With a flurry of innovations enabling freelancing, entrepreneurship, and online opportunities, ‘moonlighting’ is a ‘disruption’ that’s acting as a catalyst, an enabler for an underpaid, aspirational, mostly middle-class workforce, which first finds it hard to get a job, then struggles to live pay check- to- pay check, and finally, risks missing out on significant material goals in life. Being on the cusp of change as the gig economy continues to sprout opportunities for ‘literally’ anyone with a smart device and internet connection, it’s shocking to see the unwillingness of employers to embrace a more gig economy-relevant work strategy. 

Suggestions

There are, as such, no particular rules or laws regarding moonlighting in India. That leaves a vacuum in the policy discourse pertaining to modern work conditions, especially in the wake of gig economy and digital work. This vacuum is then misinterpreted as a ‘free throw’ for the employer (on the subject matter of moonlighting), which is most often prejudiced against the worker. 

Hence, a multi stakeholder-driven (policymakers, employers, employees, and the judiciary) discussion and policy formulation pertaining to moonlighting must be considered. Any policy on moonlighting must be reasonable, clearly defined, grounded in reality, and considerate of both the employees and the employers. To begin, the question of ‘can employers regulate their employee’s conduct outside the workplace and after work hours, and if yes, in which cases and to what extent’ must be resolved by the judiciary. The judiciary must clearly draw the line of jurisdiction for the employer and distinguish the rights of the employees outside their regular work hours. Without judicial intervention, work in the gig economy will continue to be contentious for employers and consequential for workers. Policymakers should legislate a policy that not only recognises but also il/ legalises the various practices that may (and will) result from moonlighting. This should be done only after consultations with all the stakeholder groups and empirical investigation. Best practices of other countries and/ or companies regarding moonlighting, if available, must be taken into consideration while formulating the said policy. But efforts should be made to make the policy suggestions as localised as possible so as to ease its public acceptance. 

On the part of the employers, loyalty should not be tested on the basis of how many personal tradeoffs and professional sacrifices the worker is willing to make for the sake of the company. The hours of discomfort, pain, and struggle that a worker endures reflect the apathy of the employer and a rather toxic work culture. Hence, employers must begin by trying to understand the worker’s ‘motivation’ for moonlighting. The first requisite for this would be the creation of a safe space for employees to have conversations on moonlighting. This should be followed by action research to evaluate the ground situation. Informed by the results so obtained, an appropriate policy intervention prioritising the professional requirements, economic aspirations, and psycho-social needs of the employees should be planned. Employers must structure a moonlighting policy that clearly outlines expectations for performance while at regular work and prohibition of interference of the side hustle with the employee’s primary job, and clarify issues such as confidentiality, conflict of interest, & non-competition (Billington, 2021). Meanwhile the line between the worker’s private & professional life must not be overstepped. Any policy, thus formulated, must be reviewed and revised at regular intervals. Finally, employers must focus on creating better work conditions, enhancing career development opportunities, and promoting a better work-life balance.

Workers should also initiate conversations with their colleagues and seniors about their aspirations and constraints, and draw attention to their needs. More importantly, any liberty to moonlight must not be taken for granted and/ or be used to deceive or conspire against the employer. The employee must also remain mindful and respectful of the trust that their employer places in them when liberating them from the shackles of traditional employee-employer relations. 

Conclusion

As the gig economy will keep expanding the space and blurring the geographical bounds of work to include ‘on-demand’ and ‘from anywhere’ work, moonlighting may become a rather viable channel for millions of young and ambitious workers. The opportunity cost of not spending (free) time in front of the laptop light may be so high that it may altogether seem infeasible to be under the actual moon light. So, instead of adopting an aggressive and antagonistic attitude towards this new offshoot of the gig economy, policies made now must look at employment as a spectrum that will keep adding multiple dimensions to itself in the years to come. As work becomes more and more flexible, so should our policies regarding work. The rise of non-standard forms of employment renews the demand to clear the cobwebs over the grey areas of work, especially in a digital world. Hence, policies and laws that strictly define the rights of and protections guaranteed to both employers and employees in the context of the many ‘new normal-s’ of the world of work must be legislated.

References

1. Billington, C. (2021). Overemployed – Work Two Remote Jobs, Reach Financial Freedom. Retrieved from https://www.linkedin.com/posts/charlesbillington_overemployed-work-two-remote-jobs-reach-activity-6833377872439218178-KQcu?utm_source=share 
2. Collins, L. (2016). The French Counterstrike Against Work E-mail. The New Yorker. Retrieved from https://www.newyorker.com/culture/cultural-comment/the-french-counterstrike-against-work-e-mail 
3. ETHRWorld. (2021). Calling employees after working hours: Should India Inc await laws or self-regulate? ETHRWorld.Com. Retrieved from https://hr.economictimes.indiatimes.com/amp/news/workplace-4-0/calling-employees-after-working-hours-should-india-inc-await-laws-or-self-regulate/88041048 
4. Singh, R. (2022). Explained: Swiggy’s moonlighting policy that allows staff to take up gigs beyond regular job. The Indian Express. Retrieved from https://indianexpress.com/article/explained/explained-economics/explained-swiggys-moonlighting-policy-gigs-beyond-regular-job-8108919/ 
5. The Hindu. (2022). Explained | Is it time for the gig economy?. The Hindu. Retrieved from https://www.thehindu.com/news/national/explained-is-it-   time-for-the-gig-economy/article65975404.ece/amp/ 
6. The Hindu. (2022). Wipro fires 300 employees for moonlighting. The Hindu. Retrieved from https://www.google.com/amp/s/www.thehindu.com/business/Industry/wipro-fires-300-employees-for-moonlighting/article65918759.ece/amp/  

Bibliography

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