HR Base Camp Roundup – August 24th, 2022

We often talk about how important consistency is when it comes to management and policy implementation but, for some employers, it isn’t clear how this translates into legal protection. We address this issue and discuss the increasingly prevalent subject of employee moonlighting in this week’s HR Base Camp Roundup.

Here are the HR Q&As from our HR Base Camp Facebook Group and HR Solution Center:

  1. Is consistent policy application important from a legal perspective?
  2. I just found out that one of my employees has a second job. Can I do anything about it?

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Is consistent policy application important from a legal perspective?

I recently had an employee get upset when they found out that their vacation time wasn’t going to be paid out upon separation (they put in their notice a few weeks ago). Our handbook states that unused vacation time will be forfeited upon separation, but this employee says that multiple other employees had their vacation paid out when they left. Could this be a problem from a compliance perspective?

First, to address the issue of withholding vacation pay upon separation, whether or not this is allowed varies from state to state. 

Some states view vacation time as “earned wages”, meaning that time must be paid out to employees upon separation, whereas other states view vacation time as a “fringe benefit” that does not have to be paid out.

So, if you are not in a state that has a specific law saying that vacation time has to be paid out upon separation with an employee, the way you handle vacation time when an employee leaves will be determined by the policy in your employee handbook (this is yet one more place where it pays to work with an expert to make sure your policies are in line with the laws in your area).

This brings us to the question of “consistency” in policy application. If you’ve followed our HR guidance for any notable period of time, you’ve probably heard us nod to the importance of implementing policies consistently more than a few times. In fact, it’s one of our favorite HR buzzwords here at CEDR, and with good reason.

Where consistent policy application is important for morale and professional reasons (when employees find out that one employee was treated differently than another it can cause trust and engagement issues in the ranks), there is also a legal component to treating employees consistently and sticking to your policies as they are written with all of your team members.

When you treat employees differently on a case-by-case basis – for example, by being more lenient with time-off requirements for one employee than you are for others, by writing one employee up for a performance issue that you addressed with a simple verbal warning for others, or by paying out vacation for some employees but not others upon separation – this can create real risk for your business.

Your policies should be written the way they are for a reason – either because the law dictates how a specific set of circumstances should be handled by your business or, when there are no laws saying how you have to handle a certain situation, because they fit with leadership’s preference for how to handle a given employment situation.

By operating outside the guidelines established by those policies, you create vulnerabilities that could all-too-easily become liabilities for your business. Remember, all employees are in at least four federally protected classes. And, when you make policy exceptions for one employee or a group of employees and not for others, you are leaving the door open for them to claim that those exceptions were made on the basis of legally protected criteria, which could leave you on the hook for a potential discrimination claim by any employees that feel slighted.

Consistency is key when it comes to employee management, and this is true for both professional and legal reasons. So, if you find yourself wanting to make exceptions to your policies, it might be a signal that you should consider updating those policies so that they are easier to stick to for all of your employees whenever an issue arises.

And, as always, whenever you have a question about the right way to handle a specific employee issue, reach out to an HR expert for a risk assessment and guidance on how best to proceed. 

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I just found out that one of my employees has a second job. Can I do anything about it?

It recently came to my attention that one of my employees took a second job somewhere else and I’m worried that it could create a problem for my practice. Can I tell them to quit the second job and terminate them if they don’t?

With the recent surge in inflation, increases in the cost of living, and a general feeling of uncertainty looming over the economy, it’s no surprise that working people across the country are tightening their belts. And, for some, this means taking on additional work when the opportunity presents itself.

We’ve seen a recent spike in Solution Center requests surrounding the question of what to do about employees working a second job, so here’s a brief breakdown of that issue.

It’s best to begin this conversation with the following statement: as an employer, you have very little ability to dictate what your employees can and cannot do during their off hours. What you can do, however, is set expectations for what is required from your employees in order for them to stay employed at your business.

It’s a good idea to have a moonlighting policy in your employee handbook. But, rather than saying outright that employees are not allowed to hold a second job while working for you, that policy should outline your expectations for employees when they do wish to seek additional employment opportunities. This includes:

  • Letting you or management know that they intend to look for or take another job.
  • Explaining that they need to continue meeting the expectations of their current role, which might include working occasional overtime and covering shifts, as needed.
  • Stating that employees may be terminated if that job begins to interfere with their ability to perform the duties of their current role.

Note that none of these expectations actually prevents an employee from taking a second job. Rather, your moonlighting policy should simply explain what it takes to remain employed by your business. 

If your employee starts showing up late everyday due to working late at their new job, for example, you can address the tardiness issue rather than penalizing the employee for taking another job. If they are still performing at the same level they did before taking the second job, you’re probably better off not addressing it at all.

If you would like to add a compliant moonlighting policy to your employee handbook, or if you feel like an employee’s second job is having a negative impact on their ability to perform the work they are required to do for you, reach out to the Solution Center for expert guidance on how to address this issue in a way that protects your business.
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At CEDR, we help employers protect their businesses and build stronger teams. Because stronger teams build better workplaces, and better workplaces make better lives.

Have an HR question you need to talk through with an HR expert? Reach out to the Solution Center for expert guidance, or get your questions answered in our private, professional Facebook Group, HR Base Camp.

Aug 23, 2022

Friendly Disclaimer: This information is general in nature and is not intended to provide legal advice or replace individual guidance about a specific issue with an attorney or HR expert. The information on this page is general human resources guidance that is believed to be current as of the date of publication. Note that CEDR is not a law firm, and as the law is always changing, you should consult with a qualified attorney or HR expert who is familiar with all of the facts of your situation before making a decision about any human resources or employment law matter.
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