Why moonlighting is contested

Renu Sud Sinha

The concept has always been there but the term ‘moonlighting’ has come in circulation recently, says Supriya, a Bengaluru-based HR professional with 17 years of experience in various sectors. “It has started picking up attention in recent times for various reasons. Even before Covid, people would do other assignments/jobs besides their regular work but would generally declare it to their primary employer. The employer, too, would not have an issue as long as there was no conflict of interest and the second job was done not using the primary company’s time or resources.”

Covid-19 was a game-changer. The work-from-home (WFH) phenomenon, a stumbling economy, shutdowns, massive retrenchment and the fear of losing jobs — all these factors merged, allowing and sometimes forcing people, particularly from the IT industry, to hold multiple jobs. “What raised concern was that the core-job timing was being used for two or even more employers, sometimes using the same laptop and for the same industry, creating conflict of interest,” adds Supriya.

But then, employees in the IT world have always been doing more than one job simultaneously, says Akshita, a former HCL employee, who recently switched firms. “Even before Covid, many of my colleagues had full-time dual jobs. Apart from the financial gains, it was also their ticket to upscale their skills and options. One guy wanted to move from operations to development, so he’d take up freelancing assignments that gave him the opportunity to work in his preferred sector. Soon, listing those skills in his portfolio, he got what he wanted.”

“Also, the payment is more than good. Most US, European and Australian companies pay between $10 and $50 an hour, depending on your skillset,” adds Akshita.

The founder of Nascent Information Technology Employees Senate (NITES), a registered trade union that works for the welfare, rights and benefits of IT and related sectors’ employees, Harpreet Singh Saluja, believes otherwise. Saluja, who has been working in the IT industry for 12 years, says, “Moonlighting is not rampant in India. There is a negligible possibility to have dual jobs for a worker already working 12 hours a day often. This whole hoax is based on a perception by employers than the reality. The big companies do not employ gig workers. A regular job means PF contribution and UANs leave no possibility for that. Besides, most employee contracts include a clear no second-job clause. However, if any employee takes up another assignment during his/her free time or on weekends that has no conflict of interest with his present job, there is nothing wrong in it.

“On the other hand, it were the employees who were a harassed lot during the pandemic — salary cuts, no bonus, forced leave. They were victims of many more malpractices,” adds the NITES founder.

Chandigarh-based HR consultant Rohit Chawla, with offices in Noida and Pune, partly agrees with Saluja about big companies refusing to hire freelancers or project-based consultants.

“During the pandemic, there was a major demand from IT professionals, particularly experts who develop codes, to work on projects rather than fulltime. The employers refused most of the time. Many agreed to the terms offered, some didn’t.”

Former chairman, CII (Chandigarh Council), Sarvjeet Singh Virk, says from the industry’s point of view, it’s a major cause of concern. “Covid triggered the moonlighting concept as employees had more time and could use their bandwidth in the relative privacy of home. Like the virus, the phenomenon was contagious and spread from peer to peer. The employees may think that they can be fair to both jobs but productivity is affected without doubt. It’s ethically unfair to the parent company and not a sustainable model in the long run. There is also the issue of sensitive data at risk.”

His stance is clear. “There has to be a certain level of commitment to what you are doing. If you are more comfortable doing multi-tasking, then you should be fulltime freelancers,” adds Virk, who is also the co-founder and MD, FINVASIA Group.

Another industry leader, Mumbai-based Himanshu Jain, president, (Indian subcontinent), Diversey, calls moonlighting a clear case of cheating as almost all companies do not allow alternate employment in their contracts. “Human relations and company-employee relationship are similar. It’s like having a wife (parent company) and a girlfriend (alternate job). If both know about each other, it is fine, otherwise it’s cheating.”

So, why is it happening? “It is not happening in big companies but in small and medium companies, there is always more work, less staff and resources. This triggers moonlighting,” says Virk.

Jain agrees: “It is all-pervasive because of shortage of manpower. People with the same skillsets are being pursued by everyone.”

The industry majors are divided on their stance on moonlighting. Wipro has reportedly fired 300 employees on charges of moonlighting; Infosys has shot off a warning mail to the staff about “no two-timing”; TCS has voiced concerns about ethical issues and IBM, too, is not in favour of this. To the contrary, Tech Mahindra CEO CP Gurnani is open to the idea of moonlighting as a policy in his company if the workers are open about it and are not doing something that goes against the values and ethics of the company. “It’s necessary to keep changing with the times,” said one of his tweets on the ‘M’ word.

Swiggy, one of the leaders of the gig market, on the other hand, has gone ahead and already allowed its employees to take up other gigs or projects outside the company, away from work hours. Calling it an “industry-first” policy, the food aggregator, though, said the projects could be taken up only after being declared by the employee and approved by Swiggy.

As the government aggressively pushes for a start-up culture, Union Minister of State for Electronics and Information Technology Rajeev Chandrasekhar has also come out in strong support of moonlighting as an “idea whose time has come and industry should not try to suppress it”. However, Chandrasekhar did caution about not violating the contractual obligations.

As the idea gains ground, most companies are asking their legal departments to revisit employee contracts. But where does the law stand? “Both the IT Act 2000 and the IT Rules 2021 are silent on it,” says Pavan Duggal, a Supreme Court advocate whose law firm provides legal services on cyber and e-commerce law.

“Most companies also did not have any clear stance on moonlighting. They were caught off-guard during Covid, particularly about the prolonged WFH. They were trying to deal with the pandemic reality with outdated contractual agreements that usually had a non-compete clause but nothing specific or clear on moonlighting,” he says.

Employees may take a stand on not being paid slaves, but this position is legally untested yet. “From a moral and ethical standpoint, moonlighting is not desirable but in the absence of any clear-cut policy or law, the onus is on the government to provide legal clarity. A grey law has the potential to harass employees. The present debate is good as it can be a catalyst for legal jurisprudence to evolve,” adds Duggal.

Ultimately, though, in the data-driven economy, both the employers and employees have to be pragmatic. Gone are the days when a company or person was doing one job only. “Inflation and rising expenditures led to moonlighting and any government policy/law on moonlighting should take all aspects into account — human, legal and the ethical,” the lawyer says.

No clear-cut law or govt policy

From a moral standpoint, moonlighting is not desirable but in absence of any clear-cut policy or law, the onus is on the government to provide legal clarity. A grey law has the potential to harass employees. The present debate is good as it can be the catalyst for legal jurisprudence to evolve. — Pavan Duggal, SC lawyer, expert on cyber and e-commerce law

(Some names have been changed to protect identity)

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