Looking at Moonlighting beyond the ethical and legal lens

Just a few days ago, as I walked by the lake side and marvelled at the Beaver Moon dazzling in reddish-copper colour during a total lunar eclipse, I couldn’t stop thinking about how the symmetry, alignment and precision of celestial spectacles leave us feeling nothing short of in awe, amazement and admiration for the cosmos. As I soaked in the beauty of the blood moon and gazed at her reflection in the still waters of the lake, another thought crossed my mind. How this celestial body of late, has been at the centre of an earthly phenomenon that has led to employee terminations, HR policy changes and growing mistrust in employer-employee relationship. Moonlighting!

The term which has been a raging topic in the IT services industry, refers to the practice of employees taking on projects outside of their day’s job (or after night fall) to earn an extra income or to monetize their hobbies/skills. As a work construct, this is not new or radically different from dual employment models seen across varied professions. Be it doctors running their own practice, teachers offering private tuitions, journalists taking up agency work or bankers offering financial advisory services – all come under the ambit of moonlighting. The corporate sector in itself is a case in point with senior executives and board members simultaneously serving as independent directors and advisors to multiple companies. Not to forget, the rags-to-riches stories of several successful businessmen and of new-age startup founders who have overtly done double-hatting to make their mark.

Image courtesy India Today (Nilanjan Das)

So then, why so much uproar over something that has existed for so long in the post-industrial revolution era? Those opposing moonlighting (largely employers) cite several reasons that range from loss of productivity, absenteeism, conflict of interest and loss of sensitive data. Given the highly competitive nature of IT services industry, there is merit in the last two points. And with rising insider threat presenting a major cybersecurity challenge, employers fear side hustles by employees could result in material breach of confidential data. Another viewpoint gives more weight to employer control over employee commitment and presupposes that companies can exercise discretionary control over their workers' time (outside work hours). On the other side, those batting for moonlighting see it as an avenue to supplement their primary source of income and argue that employers do not have a say in anything they do outside of the work hours. A recent post on social media rightly captured this with a funny take by drawing on the analogy of a restaurant – “I am having my main meal with you and going elsewhere for dessert.” Clearly, nothing wrong in it, but it does get a little grey and touchy when we look at two aspects that are seemingly at the opposite ends of the continuum –legality and ethicality.

First the legal part. Currently, there is no statute in India that prohibits moonlighting. Those that exist such as The Factories Act, The Industrial Employment Act and State Enactments, are either applicable to those working in factories or do not contain provision dealing with dual employment. Plus, no constitutional court has so far rendered a decision on the subject yet. As such, the only legally enforceable document is the employment contract and employees cannot be discharged from their positions unless there is an explicit clause that specifies or prohibits moonlighting, And if employees are terminated in the absence of breach of contract or evidence of conflict of interest, it might simply reduce the contract of service to a contract of slavery. Now comes the ethicality part. As long as the work done by employees outside of their first job doesn’t conflict with employer’s business and they do not use company resources (including time) or divulge proprietary data, it remains ethical. But this isn’t as simple as it sounds, for what is legal doesn’t tantamount to being ethical and what is ethical seldom gets labelled as illegal.

But beyond these two dimensions, I think there is a bigger issue at play. Why the need for moonlighting? A look at the current context and market dynamics might help shed some (star)light on this (pun intended).

1. First, private sector employees at large are not entitled to social security and job safety unlike their counterparts in the public sector. Therefore, it is only fair they look for an additional safety net to secure their future. As someone humorously pointed out, “Nobody cares about moonlight if the sun is shining bright. Because the sunlight is dimming, moonlight is coming.”

2. The unstoppable attitude of an aspirational class is a force hard to reckon with. The current crop of working class, especially millennials and Gen Z, are known to be hustlers as against balancers who predominantly represent the old-economy 9-5 jobs. The hustling culture, toxic as it may be, has its own allure and for those willing to stretch a little and bend backwards, moonlighting presents a lucrative source of income. And yes, the expansive list of projects is an added attraction to boost the resume!

3. Then there is FIRE (financial independence, retire early), as millennials and Gen Zers in particular expect to retire early, and the pursuit of which requires aggressive savings and investments for desired wealth creation. As achieving this with a single job is an uphill task, moonlighting can serve as a second fiddle to build the retirement corpus is far lesser time.

4. Finally, the macro-economic headwinds - slowing growth, rising interest rates, flaring inflation and widening layoffs, as well as a barrage of negative news flow - Ukraine war, growing protectionist sentiment, climate change events etc. have only worsened employees’ future outlook. In a VUCA world, moonlighting can act as a hedge to fill in the coffers as much before the tide turns.

The debate on moonlighting is unlikely to die down anytime soon. Opinions will keep coming and opponents and proponents will continue the slugfest. All said and done, it is foolish to not notice the changing times and the undercurrents. Rigid workplaces and contracts are a thing of the past. Fluidic workspaces and flexible contracts will be the norm going forward. Gig economy is set to expand in terms of influence and contribution; employers who fail to accommodate gig workers will likely lose the battle in the long run.

In the meantime, how about some twilighting? A nature walk through the woods, a fruity cocktail by the beach, a hot cup of tea in the highlands, or a music meditation. Soulful delights, I for sure can’t wait to jump in.