However, the debate is wide open and there is still no clear consensus on which side to take asrecruiters and legal experts themselves stand divided
The pandemic threat is now gradually receding, and life is trying to resume its normal rhythm. But it’s still not business-as-usual for the IT industry, which is witnessing an unprecedented tug-of-war between employees and the management regarding the place of work. While most organisations would like to return to the work-from-office mode – orat least a hybrid mode where physically attending office for some part of the week is mandatory – employeesaround the world are putting their feet down to zealously protect the “work-from-home” (WFH) advantage in which they have settled down over the last couple of years.
Taking unfair advantage of WFH?
There are a host of reasons why companies want their people back on their office premises, and one of them is indeed assuming alarming proportions; yet it was talked about the least – moonlighting!
But not anymore. Organisations are now voicing their disapproval in clear and definitive tone, and regulations are being enforced to battle this growing menace that threaten to weaken the foundation of the employer-employee relationship.
Moonlighting refers to the ever-growing trend in which employees take unfair advantage of the WFH situation to work parallelly for more than one organisation. The nature of these “other” employments may range from freelancing or consulting for a lump-sum payment off records – right up to regular payroll engagement outside original employment. On one hand, this is a blatant breach of trust and applicable employment laws of most countries. On the other hand, this renews the greater debate of how much of an employee’s life can an employer control via the contract of employment.
A case for forensic and employment verification experts
However, the big players in the industry have already started taking a tough stand. Such companies are now engaging forensic experts or employment verification agencies to seek out employees who are moonlighting from the convenience of WFH.In other words, it’s a full-fledged cat-and-mouse game with employers setting off detectives on the trail of errant employees. The exercise also involves evaluating employee performance in recent times to understand if there is any sharp drop in output and efficiency which might be ascribed to external interests.
Most major consulting firms now include such investigative forensic or verification activities as part of their bouquet of services. These are very much operative in India as well. For example, Deloitte has a separate Forensic Practice and KPMG offers Forensic Managed Services for interested clients – and that includes many leading Indian IT firms.
Nowadays it is easy to weed out dual employment cases that show up on payrolls on both sides. The Universal Account Number (UAN) allotted by Employees’ Provident Fund authoritiescan always be tracked as it is unique to each individual. However, “off-payroll” cases –where the moonlighter isacceptinglumpsum professional fees against freelance services –are more difficult to track. Procedures employed by the investigating agency include screen monitoring, voice sampling, analytical software, public-source databases, and social media analytics among others.
It’s a global issue
Looking beyond India, moonlighting has recently been making waves throughout the globe. And desperate measures by companies are making headlines and raising controversial questions regarding what is ethical and what is not in an employee-employer relationship. Some over-zealous organisations have gone to the extent of ordering their employees to keep their webcams on while in the WFH mode.
US telemarketing firm Chetu, based at Florida,was recently in the news when a remote-working Dutch employee refused to turn on his webcam and remain in screen-sharing modethroughout the 9-hour workday at a stretch.The company retaliated by firing the employee citing “refusal to work” and “insubordination”. The employee moved court at the Netherlands. He contested that such forced “in-camera” workplace practiceis dictatorial andfiring on such grounds is unlawful. According to court records, he did not “feel comfortable being monitored for 9 hours a day by a camera…. This is an invasion of my privacy and makes me feel really uncomfortable”.
According to legal experts, the US laws would have been in favour of the company. However, the Dutch approach was different. The court ruled that Chetu has to pay the litigant €50,000 in way of compensation, €2,700 in unpaid salary, €8,373.13 for wrongful termination, plus unpaid holiday allowances as applicable to the employee.
The jury stands divided
There is still no clear consensus on which side to take in the moonlighting debate. The companies themselves stand divided on this. While Wipro has sacked close to 300 employees in India, and IBM India MD Sandip Patel totally supported the move, calling moonlighting unethical, Tech Mahindra CEO CP Gurnanitook a pro-employee stand by stated that he doesn’t mind if employees make some extra money. Former director of InfosysMohandas Pai also do not consider moonlighting as “cheating”. Mr Pai was vocal in support of the employeesas he spoke to the media: “Employment is a contract between an employer who pays me for working for them for ‘n’ number of hours a day. Now what I do after that time is my freedom, I can do what I want.”
While no one will disagree that working for a competing company in the same industry is a direct violation of integrity – and might validly be termed a breach of contract by the employer –other engagements during an employee’s free-time cannot perhaps be controlled by organisations. The debate is wide open right now, and we shall keep you posted of further developments.
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