For many years, certain industries, technology for example, have dealt with a work trend characterized as “overemployment.” This is the case where one employee works two full-time jobs simultaneously, and neither employer is aware of the situation. Overemployment raises important legal issues for both the employers and the employees involved, including issues associated with computer and data security. As the COVID-19 pandemic has increased the number of workers working remotely, a growing number of those workers are now experimenting with overemployment. As this trend is likely to remain in place even as the pandemic eases, it is important that employees and employers understand the legal perils associated with overemployment and take all reasonable steps to address them in advance of any misunderstandings.
Alliance Law Group can help both employers and individual employees navigate the potentially perilous environment of widespread overemployment, particularly with respect to the associated data privacy and security issues.
The core legal issue associated with overemployment is the extent to which it is permissible given the terms of employment that are applicable to the employee and the employers involved. Recognize that overemployment does not address situations where an employee is working an additional part-time job or is engaged in free-lance consulting in his or her free time. Overemployment is used to describe only the situation in which one individual is simultaneously working as a full-time employee for two different employers. Overemployment should only be permissible in an environment which permits the employee to fulfill his or her employment commitments with both employers fully and without conflicts-of-interest. The key to understanding whether or not overemployment is permissible in any given situation is careful review of the employment agreements and the terms of employment accepted by the employee to ensure that the employee can perform all of those terms fully, for both employers.
One may envision situations in which, at least in theory, it should be possible for an individual to structure an overemployment situation without harming either of the involved employers. Imagine, for instance, a financial advisor working remotely for a financial services company who is also working as a webmaster to operate and maintain the website for a non-financial services business. Or consider a situation where an individual works remotely as a real estate agent employed by a real estate broker and also chooses to create computer code as an employee of a computer gaming company.
However, conflicts of interest can easily arise when the two jobs are in the same industry or, even worse, when they are for two competitors. Suppose, for example, that an individual is employed to write computer code for two different gaming companies. Such an individual might be tempted to “borrow” code from one company for the benefit of the other – or might write similar code for both companies. In either case, such an action would threaten the security of either company’s software, potentially impair their intellectual property rights, and reduce the competitive edge that the company believed would flow from their ostensibly exclusive employment of this individual.
But even without such a conflict of interest, it must be recognized that some observers take the position that overemployment is inherently unethical behavior on the part of the employee. Some of these observers argue that the failure to disclose the second full-time job, even if not technically in violation of the terms of employment involved is unprofessional conduct, no matter what the substance of the actual work involved.
Regardless of your perspective on overemployment, it is now a well-established and apparently rapidly growing practice affecting many different types of employees and involving employers of all sizes. Overemployment has the potential to trigger a variety of legal liability issues, including those associated with cybersecurity and data protection, for the employers and the individual employees involved.
As part of the requisite legal due diligence in this rapidly evolving environment, Alliance Law Group welcomes the opportunity to consult with employers and individual employees in addressing the data privacy and security issues presented by overemployment.
*This article is not intended to provide legal advice. Individual facts and circumstances vary. Accordingly, please consult Alliance Law Group or other legal counsel with respect to overemployment issues.