Seminar ‘Moonlighting’ – Legal aspects on the Employers right to prohibit dual employment/other gainful engagements and consequences of its breach on employees

Introduction

Recent actions taken by major IT Companies has sparked off a controversy necessitating a legal examination of ‘Moonlighting’..

Oxford Learners Dictionary defines ‘Moonlighting’ as having a second job that you do secretly, without telling your main employer. According to Cambridge Dictionary ‘Moonlighting’ is an act of working at an extra job especially without the knowledge of the main employer.

In so far as Indian laws are concerned dual employment is specifically prohibited under Section 60 of the Factories Act, 1948. Employment contracts also expressly forbid an employee from engaging himself in any activities, whether for gain or otherwise, without written permission from his employer.
Employees contend that they are not under the control of their employer beyond their working hours and hence they can pursue any profession or involve themselves in gainful engagement beyond working hours.

Apart from knowledge workers such as those in the IT Industry, there could be employees at various levels indulging in moonlighting. Workers at unskilled or semiskilled levels could be driving vehicles after working hours and on weekly off days or holidays. Accounts Personnel, HR personnel could be providing consultancy services to small organizations. There may be employees who work as Managers or Accountants of Cooperative Societies. Stenographers/typists could be working for Advocates/Solicitors firms after working hours. Some employees could be functioning as Insurance/Investment Advisors.

Does Moonlighting amount to misconduct and a breach of contract warranting termination of employment? Would the bar on any gainful occupation or profession even outside working hours during the period of the contract be construed as an agreement in restraint of trade under Section 27 of the Indian Contract Act, 1972?

What would be the consequences of moonlighting under Social Security Legislations such as EPF & MP Act 1952, Payment of Gratuity Act 1972, etc. An employee who works under one employer by adhering to the bar on dual employment and gets gratuity as per the ceiling, whereas as a ‘moonlighter’ stands to gain by earning gratuity from two employers which would exceed the maximum payable under the Act.

Would ‘Gig’ or freelancing be a solution to ‘moonlighting’? The new Labour Codes have recognized the concept of ‘Gig’ engagement and have provided for their social security and other benefits.

Purpose

To understand the legal aspects so as to assist Employers to take appropriate action in consonance with the law, Bombay Chamber has organized a half day seminar on the subject.

Speakers

Mr. Naresh Pinisetti
Director, Corporate Affairs – Deepak Fertilisers & Chemicals Ltd.

Mr. Lancy Dsouza
Advocate High Court, Legal Advisor, Bombay Chamber of Commerce & Industry

Ms. Deepika Agarwal
Advocate High Court, Sr Legal Associate, Bombay Chamber of Commerce and Industry

Contact Details :

Ms. Chetna Surti
Email : chetna.surti@bombaychamber.com
Tel : 4910 0228 , 98926 86418