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Here’s my question. Can an employer LEGALLY keep an employee from doing work ‘on the side’? Specifically,can a contractor prevent an hourly employee from doing ‘side jobs’ as long as the work isn’t for a former or current client or any way associated with the employer.Are there laws that address this?
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Replies
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Jerry,
No. There is no law that I know of. I find my employees side jobs sometimes. If there is something that our company is too busy to get to, I ask the guys if they want it on their own. It helps them out, and it keeps a customer happy. Everybody wins.
Ed. Williams
*Jerry,Why not look for another employer?John
*Ed...you must have some happy/content employees.You're to be commended! John....not yet that would be too easy.
*Jerry -- Haven't heard of any laws against side jobs/direct competition. Only thing I can think of is a "non-compete" agreement.A former employer had a non-compete contract that said you could not start a competing business or work for a competing business within a certain mileage radius for two years after leaving his company. Was a "don't sign, don't work" form that most people signed. How legal, I don't know.I probably wouldn't sign another one unless (maybe) my family's well being was dependent on it, and haven't seen/heard any in the construction industry, but something to be aware of.Later. LJ
*No lawyer here (where's SHG?), but I don't think those are enforceable unless there is some trade secret or the like, and not if it interferes with someone making a living from their trade. Say a plumber goes to work for a plumbing contractor. Things don't work out; he's supposed to not go to work for another plumber, or out on his own? How is he going to feed his family...he's a plumber?I've always worked side jobs when I worked for other people, and encourage them now. They add income, allow people to build skills and learn something about business NOT on the employers dime, and the way cabinetmaking is going now there are a lot of small jobs I just can't even look at without losing money; if I can pass it on to someone, it gets done and my guy makes a little extra. The only rule is, it can't be a job the shop would have bid on.
*Have you tried any of the Legal forum sites like http://bbs.freeadvice.com/cgi-bin/Ultimate.cgi ?They have lawyers who provide general advice. If you do, folks here might be inteested in their response.
*The only legal situation I can possibly think of (well, two) are people on call. If your primary employer requires you to be on 24hr call for emergencies, I imagine that would be a legal block to having a side job. (Can't fulfill the primary job requirements if you're unavailable at another site, etc.) I have not seen this type of problem in construction, but rather in other, specialized, fields. The other scenarion is I believe police officers, mebbe depending on jurisdiction, are barred from working on side, especially within the jurisdiction. (Conflict of interest)NOTE: I AIN"T A LAWYER EITHER. YOUR MILEAGE MAY VARY.
*Nope, can't take away the ability to make a living. Doubt very much an employee, unless they had access to some kind of proprietary information or were a key employee, could be forced to sign a non-compete.The employer can establish work rules that would restrict your off duty activity, no drug use, must be available on so much notice, etc. But these must be job related and you must be compensated for that.
*You can try to control side jobs with Company Policy and Contracts. The problem comes with enforcement. If the employee that is moonlighting and caught worth suing?We had a strict policy against moonlighting unless the employee informed us of the situation, such as working for a relative. In that case we often lent equipment.The downside of moonlighting can be ugly. You can easily have a fraudulent Worker's Comp claim. Take a good luck at your early Monday accidents. Did they get hurt on your job or did they limp in and fake they got hurt on your job?Another issue is the human body needs rest regardless the age. A person working on the weekend, or after hours is usually less productive during working hours.Why not pay them a wage so they don't have to work on the weekends to make ends meet?The economy is so hot you should certainly be able to get the price.Food for thought,Richard KallerCertified Contractors NetWorkE-mail [email protected] learn more about CCN see http://www.contractors.net
*Cool, I can get compensated for not taking drugs off duty? :) Oh, and non-competes are common in computer consulting business...
*So Jerry, I musta missed something. Are you the employer, the employee, or just an interested party? Just curious...
*I'm posting this question as an employee.However,Ican understand my employers side of this...to a point.His main concern is that the word will get out that his foremen can be bought 'on the side 'so why hire the company to do the work.He also talked about the very same things that Richard has posted ...all good points.I don't do a lot of side work but I don't think anyone has the right to tell me that I can't do any side work.I really do appreciate the input on this and will follow up with more later. It sounds like I might have a non-compete agreement shoved in front of me soon similar to what Little Joe is talking about.
*Those non-compete clauses are notorioulsy hard to enforce against wage earners. It's a different beast with partners.If the clause is not extremely specific, it will ususally be unenforcable. You probably would have to receive some sort of compensation for entering into the agreement. Receiving a job is not compensation.Don't worry about it, just worry about your working relationship with your employer. I always cleared my questionable side jobs with my employer first. I was usually too tired to do many however.blue
*.. i always let my guys know that we have plenty of work.. and i have awhole list of ""honey do's"" from old clients ..so if they want teh overtime they can work on saturdays..they still want to do side-jobs.. so what's the sense of arguing with them.. we try to keep the rate high enough so they would rather spend their time on company work and use their free time for themselves...the really ambitious ones.. why stifle ambition...?if they are of low moral character and would file false WC claims.. or take company matls for side jobs...they should be shown the error of their ways and be encouraged to move on....b but hey, whadda i no ?
*Pita:I guess I should have picked some other example, but yeah it could be looked at that way. Computer consulting non-competes are generally looked at under the key employee thing I was referring to. In short the person essentially is the company so to prevent the person from taking the company with her you use a non-compete. I've never heard of a non-compete being successfully used for construction type employees though unless they also had other duties that went beyond their labor.As for Jerry I wouldn't do what he is for several reasons. First, I wanted a life. Second, if I was injured I didn't want the WC situation muddied. Some employers are going to shout fraudlent claim whether it is or not. Of course it could go the other way too. Also, if I'm working long hours I'm risking my own neck. Rather than moonlight I'd much rather find a job that paid what I need, or go to a totally different field for awhile.
*Fred i gotta agree with you - as one who has been there doing "side jobs" evenings and weekends.... Well, the side jobs ultimately overtook and replaced the "regular job" but I kept working the same hours anyway.... So instead of working 60 - 80 hours between 2 jobs, I ended up working 60 - 80 hours at the different duties of one job. Old habits die hard. It's taken me years to figure out how to have a life outside the shop. Like you said, maybe it would be better to find a job that offers sufficient compensation even if it means moving on to another occupation. Jerry, what benefit does the side work offer you?
*Nah, I was under a noncompete and was hardly what I'd call key to the business - just one of a 1500+ employee firm handling Fortune 500 type clients. There were many factors, but they did not sue me when I left because basically we left 'nice', there's still a few bridges left. This is from a company with a history of not being nice, they sued a former employee for noncompete - and he hadn't even signed a noncompete contract. That type of corporate behavior was typical, and that was one reason I left - I was tired of being treated like a kiddy gardener...
*Jerry,I think everyone who works for us is happy. I want them to tell me if they're not. I had one guy quit today.......but he said he'd be back Monday. Wa-hey, sometimes you just gotta get away. If you're ever looking for work in Dallas, look me up.Ed. Williams
*way back when I was remodeling a lot I offered some sort of incentive as a finders fee for my employees that gave me job leads that produced. If the job turned out to be large enough I would go as high as 5 to 10% of the profit. If it was small I used a sliding scale from $25 to $100. the guys got to work on" their job" and I got to feed my family, but that was back in the mid to late seventies when the economy wasn't what it is today. It might still work though.
*The original question was can we legally stop etc. Probably not but I think most of you (IMHO) have seriously missed the boat. I see two major problems with moonlighting.1) In most areas it's illegal to work without benefit of contractor's registration, Federal Tax ID number, etc. The employee is conducting business illegally. If his "clients" find out and he/she seriously screwed something up the will come after you, the legitimate contractor. This has actually happened and the contractor was held liable.2) The employee who moonlights is stealing from the contractor. Most obvious is the energy spend doing a side job. The day after working until 10:00 PM the employee won't be worth a bang. He probably also goes to his side job with a pocket full of nails and screws from your job, your tools in his truck and probably your gas in his gas tank.We have an employee manual and a section that forbids side jobs by employees. The penalty for breaking this rule can be termination. We have never had an employee complain. We pay them well and explain the importance of having a life away from work. I don't work 60 hours a week and I sure don't want them to.
*Peter-In our area it is not illegal for a sole proprieter without insurance or fed id # to work as long as they follow the applicable local building codes.You seem to have a very mistrusting view of your employees. I have been been building my own house for the past fifteen years. Is the time I have been working on my house stolen from my customers? If I have a strenuous athletic hobby, is this stealing as well? What about staying out a little too late watching football at the local pub?We encourage our employees to take on an occasional side job to the extent of loaning them equipment and advising them on problems that they may face. It has always been a positive. I have found that the biggest problem with even the best employees is getting them to make decisions and take responsibility on our jobs. It is easy to teach skills and work habits but many employees are reluctant to take on more. Side jobs are a great opportunity for them to develop the management and business skills that make them more valuable. There is a risk that we are creating competition for ourselves but that has yet to occur in twenty years and frankly wouldn't bother me if it did.
*Peter, You don't own your employees. After hours, they can do whatever they want.As to a client of your employee ever comming after you, there must be more involved. If you had no knowledge of the agreement, didn't offer advice, tools, or other help, how can you be liable? If your employee robs a bank after hours and you weren't involved, are you somehow responsible for that? Ridiculous.And to say that an employee working side jobs is steeling from you is also wrong. You say that the most obvious is the energy they spend on the side job. Again, you don't own their "energy". If they want to take on a side job, play baseball, stay up late, or do anything else that makes them tired and useless to you, you get to fire them for being useless. How they got that way is none of your business.And, if your employees are taking your nails, screws, tools and gas, they are stealing. But unless they do it, they haven't done it. The argument that they would be able to take your nails therefore they are taking your nails is too distrustful for my lifestyle.
*I'm with you Schelling, except for the part of building my house for 15 years. I'm only one year one but it may get to 15 unless I can get a bunch of timers to head over and help out (and in).And I always told the guys to just grab whatever nails they need, unless it was going to be more than a box.blue
*I think Jerry must be one of Peter's employees! Hey Jerry, find a new boss! John
*I've had the same policy for 30 years. I spend a lot of money taking care of my customers. Therefore, they belong to the company, as do any that they refer, including the next door neighbor and bingo player friend.On the other hand, I often recommend a customer to an employee to do the job as a side job, even with my help in layout, tools, mgt. suggestions, etc. Some times the employee is to embarrased to state a price, so I'll tell the customer to pay him say $25 or $35 per hour, depending on the project type - of course with the employee's permission, or at his suggestion. As Schelling says, it's to my benefit if he learns management, sales, and other aspects of running a business. It's also to "his" advantage because as he learns after 4:30 PM, he becomes more valuable to me - therefore, I can pay him more and promote him faster. Expertise gained regardless of where is a win/win situation for everyone involved. The only caveat is that I remind these customers that the employee has no workers comp and no liability. So, it's up to them to prioritize that vs saving money.
*Well , I'm back...sorry I left in the middle of the conversation. Things have quieted down at work,so far no 'servants' papers.As I said before,I do few side jobs.When I do it is for all the right reasons : mortgage,truck payment ,baby diapers etc and I thoroughly enjoy what I do for a living.I could easily change occupations but then I would just have a job.Most of the side jobs that I do aren't solicited...they call me I don't call them.I have been approached by my employers customers on several occasions and asked 'Do you do any side work?'and my answer is and always will be the same,"yes ,but I can't and I won't"...knowing fully well where the conversation was leading.As for 'stealing from my employer' I have several things to say to address that narrow minded statement. When I went to work for my current employer I interviewed him more than he did me. What I had to offer his company was 22 years of experience..I've pretty much seen and done it all. I have 4 years of apprenticeship training,14 years of Union commercial construction experience and have been involved in every aspect of residential construction from dirt to drapes and everything in between.I own all the tools that it takes to do any job.I haul his material in my truck to the job site and have hauled trash from the job site back to the shop ...not because I had to but because it needed to be done.Sometimes when we need something on the job rather than take the time to write out a P.O. I take things from my own personal stock(nails, screws,shims etc).The company I work for does mostly 'high end' remodeling. I've worked in $500,000 homes and I've worked in $50,000 homes and have treated the customers all with the same respect....all for the company.If I do side jobs to stay a little bit ahead of the game and to make life a little nicer for my family then that is my business and nobody elses. How dare you to say that I'm stealing from my employer.One of the reasons that you've never had 'an employee complain' is pretty obvious to me. No JRS I don't work for Peter....he couldn't afford me.Regards,Jerry
*Here Hear!!I'm in the same boat as you. I have twenty years of experience, own all my own tools and truck, have invested years in learning - both OJT and book, and have given of my youth and body.I have never seen another kind of profession that requires, like this profession, such an incredible investment on the part of the employee. I sometimes feel envious of the other guys on the road in the mornings driving to work in their sports cars, carrying nothing other than their briefcases. The extent of their investment often lies with the clothes they wear so spotlessly.For any employer to imagine that he (or she) owns lock, stock, and barrel - anyone who has likewise brought such an investment to work with him, is thoughtless, ludicrous, and plainly unreasonable.To me, the real key to this issue is one of ethics. I feel that the customers and any associated contacts developed by my boss belong to him. They represent his investment in time and money, and I believe it is stealing from him to engage in business in this arena. Likewise, any contacts developed or made by me while engaging in business on the behalf of my employer.However, anything I do in my off hours, as long as it does not run counter to the above paragraph, is for me. I have paid for my tools, provide all my supplies for any side jobs, and my employer is not paying me a thing for my "off-hours". I take careful care not to steal nails or supplies from him for any of my off hour ventures.I'm like most of you here - I occasionally need a little help in making the bill payments, and on those occasions, a little side work helps out. I have even turned several nice jobs to my employer when I could not handle them in my spare time. Unless and until the time comes that my employer pays me a retainer or other recompense for exclusive rights to my time 24/7, what I do with my own time after hours will always belong to me. Keeping it fair and ethical,Ken
*To Peter CGR In my state (Arizona), the mechanics' and materialmen's lien law states that labor can be furnished in one of two ways - either at the instance of the owner or the owner's agent and that all contractors and subcontractors are agents of the owner. It further states that the owner has to pay for the labor in either instance. Our contractor licensing laws require property owners to obtain a specialty license if they want to directly employ a mechanic to perform labor. There are a few exceptions such as property owners who reside in the residence. For example, if a property owner owns rental property and wants to directly employ a journeyman plumber (mechanic) to do plumbing work on the rental property, then the property owner must obtain a specialty contractor license as a plumbing contractor. The law has always held that there are two different classes of plumbers - journeyman plumbers who are mechanics and master plumbers who are contractors. The contractor is the property owner who pays the mechanic to perform the labor. These are the two parties to a contract. The law also contemplates that a property owner can employ an agent to act as contractor on his behalf. Of course, I don't know anyone who would pay someone else to contract on his behalf. If the owner acts as contractor and employs a journeyman (mechanic), then he only has to pay the journeyman's bill. If the owner employs an agent to act as contractor, then the owner owes the amount of the agent's bill plus the amount of the journeyman's bill. I don't understand your position that a mechanic is illegally conducting business by exercising a constitutional right as well as doing something that the legislature expressly says they can do.It may be that the property owner is acting illegally by not having a contractor's license. But that does not have any bearing on what the journeyman does in conducting the business of a mechanic.
*Ken, I hear you "hear." I'm especially impressed with your first two paragraphs. For years now, I've been frustrated by those in our industry, both employee and employer, who simply do not respect their respective positions. Those carrying breifcases do have their share of stress - been there, and it's only stress. Those in our industry must contend with that same stress, plus physical stress and the trememdous potential of phyical injury, (we all have those scars), plus the initial education needed, plus the continued perpetual education needed, and in the case of employers, the liabilities of ownership, especially those with employees, who simply by "representing" the owner, can put him into liabelous situations.All of the above, and yet they still insist on selling themselves short in both labor rate charged, and net profit demanded. Both employers and their field staff should get much more.Last week, I got charged $80 per hour by an overhead door company for a service call. $40 trip charge and 1/2 of an hour at $80 per hour. Many electricians and plumbers charge a similar hourly rate. Furthermore, they only have to be expedient in one trade. Most of us must be well versed and perform in several trades.I truely feel sorry for those working for less than $65 per hour, and those working for $35 to $45 per hour are, in my opinion, working for zilch. If my son can charge between $110 and $125/hour for his high end remodels, the rest of us should as well - if, and there's the caveat, we are willing to do what it takes to get paid as professionals should get paid.In an industry flooded with egos, I'm surprised at the loss of ego when it somes to self respect, and the self emposed denegration of one's own self worth and value. They, (the public) says we're only worth so much, and of course, "we" put our heads down, and acknowledge their valuation as though they really know what the hell they're talking about.We bring our equipment to their homes, our materials to their homes, our man power to their homes, and build each "prototype" in their homes and usually under their eyes. Then we act as construction managers, and they get it all for $50 - $60 per hour, and complaining all the way about our pricing- even as they leave in the morning to meet their CPA who they GLADLY pay $75 to $125 per hour - at the CPA's office, and at his convenience.OK, so I got off the subject, but Ken's initial paragraphs got to me.
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Here's my question. Can an employer LEGALLY keep an employee from doing work 'on the side'? Specifically,can a contractor prevent an hourly employee from doing 'side jobs' as long as the work isn't for a former or current client or any way associated with the employer.Are there laws that address this?