by Kylie Crawford TenBrook
It may only be April 2015, but the 2016 presidential race has officially begun. On Monday, the New York Times listed 12 Republicans and four Democrats who have expressed an interest in running for their party’s 2016 presidential nomination in the article Who Is Running for President (and Who’s Not)? Three current governors and three current senators were included in the article, and while everyone on the Times’ list has indicated they want to run for president, none have said that they will resign from their elected positions if they do run. 
As an avid observer of politicians’ behavior, I am quite certain that these senators and governors are simply acting in the best interest of their constituencies. However, do they have enough time to perform their jobs as elected officials and be presidential candidates? Running a state or being a U.S. senator seems like kind of a big deal. Should they be permitted to “moonlight” in their efforts to be the leader of the free world?
By the light of the moon
“Moonlighting” refers to a situation in which an employee works more than one job. Moonlighting can pose several problems for employers and interfere with business. For example, employees working more than one job may be too tired to perform effectively. Additionally, an employee who moonlights may have scheduling conflicts or attendance issues as a result of the second job. Also, employers in some industries may be concerned about conflicts of interest if an employee goes to work for a competitor.
On the other hand, it is important to remember that employees are people with mouths to feed and bills to pay. If they are not making enough money working for one employer, they may need to work a second job. An outright prohibition on moonlighting could result in the loss of good, hard-working employees.
Conflict avoidance
In light of those considerations, here are a few tips on moonlighting and moonlighting policies:
- Regardless of whether you have a policy on moonlighting, you should have a policy that prohibits conflicts of interest. Employees should not moonlight for competitors, and if they do, you should have incredibly tight confidentiality and trade secret agreements. Also, consider whether an employee working for a competitor violates a noncompetition agreement he has with you or the other employer.
- If you decide to institute a moonlighting policy, make sure it focuses on prohibiting interference with your operations. Don’t focus on off-duty conduct because (1) you do not want to know everything your employees do when they’re not at work and (2) for multistate operations, some states prohibit employers from regulating lawful off-duty conduct. The policy also should require employees to disclose when they intend to take another job and obtain approval before doing so.
- Whatever your policy on moonlighting is, consistency is key. If one employee is permitted to moonlight under certain circumstances but another employee is not under similar circumstances (or what he views as similar circumstances), you could open yourself up to a discrimination claim.
Biggie or not?
In response to questions about his ability to serve as governor and run for president, New Jersey Governor Chris Christie responded, “I can walk and chew gum at the same time.” I would suggest that walking and chewing gum are not comparable to running the state of New Jersey and campaigning for president of the United States. Perhaps a more appropriate statement would be something like, “I can juggle torches of fire while swimming backstroke in a pool of sharks. No biggie.” Regardless, it’ll be interesting to see whether Governor Christie or one of the other presidential hopefuls can pull off what could be the biggest case of moonlighting the world has ever seen.
Kylie Crawford TenBrook serves as corporate counsel for Best Western International, Inc., in Arizona. Previously, she practiced labor and employment law exclusively. In her spare time, she enjoys reading about the misdeeds of celebrities, politicians, and professional athletes and making the tenuous connection between those missteps and what she does for a living.