moonlighting. n.

...
3. colloq. (orig. U.S.). The practice of doing paid work in addition to one's regular employment.^[1]

In American usage, moonlighting can refer to a high school music teacher who gives private lessons, a doctor who takes on shifts at multiple locations, or a software developer who spends after-work hours on a startup. In some cases, moonlighters seek extra income. For others, the opportunities for professional and personal development make moonlighting appealing; still others use it as an opportunity for innovation, to experiment with new ideas.

Moonlighting may be necessary, even admirable, for some. However, when professionals undertake additional work as professionals, they encounter ethical (and legal) risks. Professionals may come into a conflict of interest, if their 'moonlighting' activities conflict with their goals of their employer, or if moonlighting influences their performance as employees. Some contracts have moonlighting clauses, assigning ownership of work undertaken outside of the workplace.

Theoretical Background

Duty of Care, Duty of Loyalty

The major issues in moonlighting are highlighted by two legal obligations. First is the duty of care, a legal obligation that any service which could conceivably cause harm must be performed with a sufficient level of care that one could reasonably expect to avoid the harm.^[2] In other words, be careful. For example, a professional operating heavy machinery or flying an airplane has an obvious obligation, both moral and legal, to concentrate on their work and do it well. An area where this obligation clashes with reality is in medical practice, particularly for those doctors who are in their residencies. At that point in a doctor's life, there's a strong motivation to get more experience and to pay back school debt, both of which can be done by working more hours.^[3] Thus, residents commonly work extra shifts or even a second job in addition to their already rigorous residency.^[4] Unsurprisingly, this leads to sleep deprivation, which can be expected to effect their quality of work. More than just speculation, this was confirmed by a significant study revealing an increased number of errors made in an ICU under conditions of sleep deprivation.^[5] As such, the ACGME (Accreditation Council for Graduate Medical Education) has suggested various restrictions and reforms, among which is the maximal 80-hour work week (which is still twice the US standard 40-hour work week).^[6] Those restrictions are now required for a residency to gain accreditation, although they've brought little change, as compliance is self-reported.^[7]

A Golden Retriever, a breed of dog known for loyalty

Second is the duty of loyalty, an obligation to prevent conflicts of interest and to act in the interest of one's company.^[8] That is, one must put their company above themselves and competitors. This precludes things such as insider trading, as that would put one forward potentially at cost to one's company. A common extension of this idea is the non-compete clause. Such a clause says that during and often for a time after employment, one cannot perform work for a competitor.^[9] Companies often also have clauses regarding IP assignment, asserting that the company gets ownership of any patent or invention created while in their employ, even if done outside of work.^[10] Together we see the theme of companies laying claim to all of an employee's work, not just what is done for the job. They're often successful in taking ownership of anything 'related' to their work. Clearly, it is in the company's best interest to interpret "related" very broadly, as this ensures they own more inventions and that their employees are unable to work against them. Interestingly, if an employee had chosen to work somewhere because of being interested in the work, in a sense they've lost the ability to work with their interests after work.

We see a driving question here: for a salaried employee, what is owed to and owned by the company?

Estrangement of Labor

Karl Marx

Karl Marx's Economic and Philosophical Manuscripts describe a concept of "estrangement" or "alienation" of labor that can help us make sense of the ownership question. In the first form he describes, this is a separation of the worker from the products of his labor. At no point does a laborer own the product they are producing; instead, their labor is bought and sold as if it were an object.^[11][12]

In feudal times, a farmer would work land owned by a lord, and give a (fixed or proportional) part of the land's yield to that lord. The farmer owed the lord that product as rent, but the ownership of the product remained with the farmer. In a modern economy, some professionals such as artisans and freelancers in various fields still maintain this model: the product, rather than labor, is sold. However, many people today perform either wage or salaried labor: they are paid for a quantity of work measured either in time or as fulfillment of certain duties. There may not be a concrete product produced (for instance, in the retail sector), or there may be one produced in which the laborer does not have ownership (as in software engineering).

While labor can be bought and sold, the labor is still voluntary (under the first form of estrangement of labor). Furthermore, the laborer sells some quantity of their work; they may decide to undertake additional labor to sell (or to sell the products of) elsewhere.

In a moonlighting-friendly contract or workplace, the worker's (professional's) labor is therefore only partly estranged; an employer purchases either the professional's product, or a part of the professional's total labor, and the professional may do what they will with the remainder. However, when contracts include non-compete or assignment clauses- that is, clauses that restrict or change the ownership of "moonlight" labor or its products- the professional has sold more than a fixed quantity of their labor. Contracts may contain clauses that assign all products created by the professional to a company's ownership, even when such products were not created with the encouragement, consent, or even knowledge of the company.^[13]

Self-directed labor is intrinsically different from assigned labor at a day job; it provides opportunities for a professional to explore and experiment, to take risks, and to investigate new ideas. Marx notes that non-alienated labor is necessary for a feeling of fulfillment; in Wolff's terms, it acts as "a confirmation of [the producer's] powers".^[11] When one wholly owns the products of one's labor, and all the rewards thereof, one may perform to a higher (rather than a minimum) standard. One may also be willing to take greater risks or to explore unusual paths which a group (or manager) would dismiss.

Contracts with anti-moonlighting provisions seek to capture the benefits of self-directed labor; they imply the purchase of the employee's intuition, intellect, and creativity. In fact, assignment clauses allow companies to gain the rewards of professionals' investigations into new territory without assuming the risk, such as when employees begin startups in addition to their contract labor.

Moonlighting for Startups

Many start up founders advise people trying to start their own technology companies to keep their day jobs as they try to get their new venture off the ground.^[14] Beginning a company as a moonlighting project is seen as a great way to reduce the financial risk inherent in a young company. The first few months of such a project do not have any financial return and the income from a day job allows people to spend the time necessary to give their venture a fighting chance. Starting a company in such a way is ideal for the individual, but can often bring them into conflict with the company they work for during the day. Companies often have specific clauses and restrictions that either prohibit an employee from moonlighting, or that take ownership of the product they create. Even if the company does not explicitly prohibit such moonlighting, starting such an intensive project will likely shift the attention of the employee away from the job they are being paid to do. It is then possible to violate both the duty of care and the duty of loyalty, and therefore great care must be taken if one chooses to start a company as a moonlighting project.

Company Affordances

While companies commonly have very strict moonlighting policies, they often see the benefits of such self-directed labor.

Corporate Moonlighting

Google logo

Google sought to encourage self-directed labor through its "20% time" policy.^[15] This policy stated that 80% of an employee's time should be spent on the job they were hired to do, and the other 20% on something they are interested in that in some way benefits the company. Google has since removed the policy but has unofficially adopted a "120% policy".^[16] This is understood by the employees to mean that they should only work on personal projects once they have completed their obligation to their position. The personal projects are still encouraged though and employees have free range to use any company resources. In this situation employees are moonlighting, but everything is still being controlled and owned by Google. The company recognizes that when someone is passionate enough to work on a project in a moonlighting setting, they will often produce very beneficial products. Google wants to make sure that they still own everything though.

Twitter encourages its employees to undertake self-directed work through Hack Week events. Employees start new projects that may benefit the company (or that may just be fun), but the projects are undertaken at the employees' discretion. As with the 20% time policy, this allows the company to use innovations and positive results from employees' experimentation.^[17] BrightTag, SUSE, and Linkedin (among others) hold hack weeks or analogous events.^[18][19][20]

Moonlighting as portfolio

One of the main focuses in the interview process for software positions are personal projects.^[21] The work that an individual has done in the past is one of the most reliable gauges of their abilities. Due to many non-disclosure agreements though, interviewees are often unable to fully discuss work they have done in previous jobs. However, personal projects do not have the same restrictions, and the drive required to complete a project outside a work environment is an attractive trait. Once a person has been hired however, many companies restrict the ability to continue such projects.

Moonlighting as interview

The CEO of the company GroupTalent, Manuel Medina, proposes that moonlighting is a better alternative to interviews for software professionals.^[22] Instead of coming in for an interview, an applicant is placed in contact with a current development team that is working on a real project for the company. In addition to the applicant's "day job," the applicant uses moonlighting time to get exposed to the work the company does, as well as the culture of the development team they would work with. If the company is pleased with the work the applicant has done, and the applicant is comfortable with the work and culture of the company, the hire is made. Medina notes that many companies still think of moonlighting as a type of "treason" but the current economic situation has made more companies willing to entertain the idea of hiring people this way.

References

1. ↑ "moonlighting, n.". OED Online. March 2014. Oxford University Press. (accessed April 09, 2014).
2. ↑ "General Duty of Care", Western Australia Department of Commerce, available at http://www.commerce.wa.gov.au/worksafe/content/about_us/legislation/OSH_Act/General_Duty_of_Care.html
3. ↑ Kwo, Elizabeth, "Moonlighting for Extra Money", Medscape, available at http://www.medscape.com/viewarticle/761414
4. ↑ Stevens, Larry, "Before you moonlight: The ins and outs", http://www.amednews.com/article/20071022/business/310229993/4/
5. ↑ Landrigan et al., "Effect of Reducing Interns' Work Hours on Serious Medical Errors in Intensive Care Units", N Engl J Med 2004, available at http://www.nejm.org/doi/full/10.1056/NEJMoa041406
6. ↑ "Frequently Asked Questions – ACGME Common Duty Hour Requirements", ACGME, available at https://www.acgme.org/acgmeweb/Portals/0/PDFs/dh-faqs2011.pdf
7. ↑ "The Experts: Are Medical Residents Dangerously Exhausted?", Wall Street Journal, available at http://online.wsj.com/news/articles/SB10001424127887324503204578318763513170222
8. ↑ "An Employee's Duty of Loyalty to an Employer in Pennsylvania," Wolf, Baldwin, and Associates, available at http://www.wolfbaldwin.com/Articles/An-Employees-Duty-of-Loyalty-to-An-Employer.shtml
9. ↑ "Non-Compete Agreement", OneCLE, available at http://contracts.onecle.com/type/21.shtml
10. ↑ "Intellectual property (IP) assignment agreement: Sample template", MaRS Discovery District, available at http://www.marsdd.com/mars-library/intellectual-property-ip-assignment-agreement-sample-template/
11. 1 2 Wolff, Jonathan, "Karl Marx", The Stanford Encyclopedia of Philosophy (Summer 2011 Edition), Edward N. Zalta (ed.), available at http://plato.stanford.edu/archives/sum2011/entries/marx/.
12. ↑ Marx, Karl, "Estranged Labour", Economic and Philosophic Manuscripts of 1844, trans. Martin Mulligan, available at https://www.marxists.org/archive/marx/works/1844/manuscripts/labour.htm
13. ↑ The authors have seen such clauses in contracts for software engineers.
14. ↑ "The Moonlighting Survival Guide", Startup Law Blog, available at http://www.startuplawblog.com/2011/08/05/the-moonlighting-survival-guide/
15. ↑ Mediratta, Gharat, "The Google Way: Give Engineers Room", The New York Times, available at http://www.nytimes.com/2007/10/21/jobs/21pre.html?_r=0
16. ↑ Christopher, Mims, "Google engineers insist 20% time is not dead—it’s just turned into 120% time", Quartz, available at http://qz.com/116196/google-engineers-insist-20-time-is-not-dead-its-just-turned-into-120-time/
17. ↑ "Hack Week @ Twitter", available at https://blog.twitter.com/2012/hack-week-twitter
18. ↑ Wendland, Dave, "BrightTag Hack Week: Episode III", available at http://www.brighttag.com/2014/02/11/brighttag-hack-week-episode-iii/
19. ↑ "Hackweek", available at https://hackweek.suse.com/
20. ↑ Nash, Adam, "10 Ways to make Hackdays work", available at http://blog.linkedin.com/2011/06/09/10-ways-to-make-hackdays-work/
21. ↑ Fairley, Andrew, "Top 5 Interview Questions To Ask Software Developers", Undercover Recruiter, available at http://theundercoverrecruiter.com/5-interview-questions-for-software-developers/
22. ↑ Medina, Manuel, "Moonlighting is the New Job Interview", GroupTalent, available at https://grouptalent.com/blog/moonlighting-is-the-new-job-interview