MOONLIGHTING- A DESIRABLE WORK MODE
Moonlighting’ may be a norm in future specially for people with multiple skill-set but it may be restricted to specific industries and a more regulated legislative regime in the interest of the employees is required.
With God’s grace, we have passed through the most devastating times of the Covid pandemic and are seeing normalcy. During the pandemic, work from home (WFH) emerged as a necessary progression of working model which ensured sustainability and business continuity. The practice for WFH has continued & organizations have allowed employees to continue to work remotely. The work hours are adaptable to the nature of work being performed by the employee unlike the traditional employment pattern the employees are required to work certain hours in a day and number of days in a week depending upon the applicable prevailing laws.
Recently, the government notified Special Economic Zones (Third Amendment) Rules, 2022 in which a new rule 43A (work from home) was inserted in the Special Economic Zones Rules, 2006. The rule provides that any units (set up under SEZ) may permit its employees, including contractual employees, to work from home or from any place outside the SEZ in accordance thereof. The rules applies to various categories of employees.
Whilst the discussions were being held in respect of giving a legal recognition to the model of work from home, this flexible way of working has now given rise to dual or multiple employment by many organisations. This concept in popular parlance is called ‘Moonlighting’. A question comes to the mind as to how a person who is full time employed with an organization can take up any second employment beyond normal working hours fixed or declared by the organisation where the employee is permanently employed? This concept is not new or alien in India and it would be wrong to suggest that in India there is no statutory restrictions or prohibition in relation to ‘Moonlighting’. The Factories Act, 1948 which is a central legislation and regulates the labours employed in factories in India provides a restriction in Section 60 of the Act, that no adult worker shall be required or allowed to work in any factory on any day on which he has already been working in any other factory except as prescribed. There are restrictions on double employment in Delhi Shops and Establishment Act, 1954 and some other State laws. Employees are also governed by their respective contract of employment and applicable policies of the employer which generally contains clauses restricting dual employment. Policies on non compete rules and confidentiality are also areas which discourage dual employment.
Information in public domain suggest that Swiggy, a food and hyperlocal delivery start-up in August 2022, announced an industry-first ‘Moonlighting Policy’ and allowed its employees to work on other projects under certain conditions after working hours. “This could encompass activity outside of office hours or on weekends that does not impact their productivity on the full-time job or have a conflict of interest with Swiggy’s business in any way”. The policy is now available for all full time employees of Bundl Technologies parent company of Swiggy including subsidiaries, affiliates associates and group companies. Swiggy believes that working like this will help in both personal and professional development. on the other hand, IT companies termed the concept of ‘Moonlighting’ as cheating.
In the authors’ opinion the concept ‘Moonlighting’ may be a norm in future specially for people with multiple skill-set but it may be restricted to specific industries and a more regulated legislative regime in the interest of the employees is required. Another question that needs to be answered is if an employee is to work over and above his/her hours of work in his/her primary employment and work at night, necessarily the efficiency of the employee in the primary employment will take a hit which is the primary employers will not be able to accept. It cannot be denied that a deeper discussion is required on this model of working as well and this concept cannot be brushed aside. The areas which shall pose a challenge shall be the fatigue of employee and conflict of interest which can be dealt with coherent law and strict policies, however this shall certainly enable a prospective employer in retaining some of its employees with affordable salaries and meeting temporarily requirements of jobs.