In May, a National Labor Relations Board (NLRB) administrative law judge (ALJ) struck down an employer policy that banned moonlighting (i.e. holding a second job) on personal time. In Nicholson Terminal & Dock Company, the employer’s handbook for employees contained a rule prohibiting moonlighting. Specifically, the rule stated that employees could not work a second job that: 1) was inconsistent with the employer’s interests; or 2) could have a detrimental impact on the company’s image with customers or the public. The rule also required employees to get prior approval from the employer before accepting other employment.
ALJ Elizabeth Taft determined that, among other things, the employer’s rule prohibiting moonlighting was unlawful. In reaching her decision, Taft applied the balancing test recently established by NLRB in The Boeing Company, to determine whether the potential impact on employees’ rights under the Act was outweighed by the employer’s legitimate justification for the rule. Taft determined that the prohibition against moonlighting affected and interfered with the employees’ non-work time and could potentially restrict their right to engage in organizing efforts or their right to affiliate with other employees or unions. Taft also determined that, by requiring employees to get permission to work a second job, the rule would chill an employee’s right to engage in protected conduct.
Taft then examined the employer’s justifications for the rule. Specifically, the employer asserted the rule was necessary because: 1) the work performed by the employees was dangerous and working a second job could cause fatigue; and 2) the employer did not want its employees working for a competitor. Ultimately, Taft found that while the employer articulated legitimate concerns, they didn't outweigh the employees' substantial, core rights under the National Labor Relations Act (NLRA) to organize, associate and affiliate with other employees and participate in union activity on non-work time without their employer's interference. Taft concluded that the employer could have achieved its goals with a more narrowly tailored rule.
The decision is an ALJ decision and could be reversed by the NLRB on appeal. Nevertheless, it serves as a reminder that school districts should be cautious when drafting employment policies and should carefully craft language that avoids negatively impacting the rights of employees under the NLRA. School districts with policies that prohibit or limit moonlighting should consider reviewing their policies with board counsel to ensure that any prohibitions are clear, narrowly focused and justified.