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We just discovered that one of our full-time employees (9 a.m.-5 p.m., Monday-Friday) has been working another full-time job. The job isn’t for a competitor, but we are concerned that working 80 hours a week will reduce the employee’s ability to do his job. Can we require employees only to have one full-time job? We do have sympathy for the high cost of living, and no, we can’t afford to pay more.

The high cost of living is very difficult for everyone, and I fully believe you when you say you can’t pay more. And even if you could pay more, it would be highly doubtful that you could pay the equivalent of two full-time salaries. So I empathize with everyone here — your employee is working his tail end off, and you want an employee who isn’t exhausted. What can you do?

Competition isn’t the only concern

As a reminder, California prohibits non-compete agreements, which means that it’s illegal to include non-compete clauses in employment agreements or to have employees enter post-employment non-compete agreements. That prohibition was reinforced by a law that went into effect in January of this year, expanding the restriction to agreements made out of state and giving employees a pathway to challenge illegal non-compete agreements. 

California has an especially firm stance against post-employment non-competes, which attempt to stop an employee from leaving a business to work for a competitor, but a 2008 California Supreme Court decision held “that any employment non-compete agreement or clause, no matter how narrowly tailored, that does not meet the statutory requirements is unenforceable,” according to Mojan Anari, a Los Angeles-based attorney for the national law firm Akerman. 

But competition isn’t the only concern — as you pointed out, energy and devotion to work are also important. You want employees to be “all in” when they are working for you. It’s reasonable to require an employee to be at work — whether that is an office or at home — during certain core hours. The expectation is they are going to do the work that they need to do this job. 

If they can meet their hours and devote sufficient energy to your job, you can’t prohibit them from working a second job unless this is a senior leader. Businesses can generally require executives who want a second job or to serve on another company’s board to get permission to do so, but a lower-level employee would not have the same restrictions.

How to approach your employee

Now that you have the background on what you can do, you can figure out how to speak to your employee. Here are some important things to do.

• Express empathy. Working two full-time jobs is hard. Talk with your employee, and let him know you know, you want to help him be successful in his job for you and not completely burn out.
• Set boundaries. What do you expect from your employees? The standard needs to be the same for him as for everyone else. If you don’t care when other employees work as long as they get their work done, you shouldn’t require him to be on task during set hours. But if you have core hours you expect all employees to be working, you can also require that from him.
• For hourly paid employees, make sure he cannot submit hours that he was doing work for the other company. If he’s on the clock, he’s on the clock.
• Ask him how you can best support him. If he’s been with you longer, the new job may not last long, and it’s easier to retain than hire someone new. 

While you may be tempted to lecture your employee on how he’s going to burn out and you want his full devotion, that is unlikely to cause him to say, “Oh, you are right! I shall quit my other job right now!” Your employee undoubtedly needs the money, or he wouldn’t want to do this.

And, of course, take a look at your compensation. Are you paying a market rate for the job? Would you have to pay someone more if this employee quit to devote time to the second employer? If you’d have to pay the replacement more, it’s time for a raise. 

Send questions to evilhrlady@gmail.com.

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