Moonlighting employees in California have a right to hold down their second jobs (or to work on startups in their spare time).
The right to moonlight – and to engage in other activities on one’s own time – is expressed in Labor Code Section 96(k).
Labor Code Section 96
Section 96 identifies, generally, the types of employee claims that the California Labor Commissioner is obligated to accept. These include, for example, claims pertaining to payment of wages and expenses; damages arising from misrepresented conditions of employment; claims for vacation pay; and awards for workers’ compensation benefits.
Moonlighting is addressed as follows.
96. The Labor Commissioner and his or her deputies and representatives authorized by him or her in writing shall, upon the filing of a claim therefor by an employee, or an employee representative authorized in writing by an employee, with the Labor Commissioner, take assignments of:
…(k) Claims for loss of wages as the result of demotion, suspension, or discharge from employment for lawful conduct occurring during nonworking hours away from the employer’s premises.
More than Moonlighting Protected
Indeed, moonlighting is not the only activity that is protected. An employer cannot demote, suspend or discharge and employee for any lawful conduct occurring during nonworking hours away from the employer’s premises!
It is important to realize, however, that moonlighting might produce results that can justify demotion, suspension or discharge. So, for example, if a second job makes an employee so tired that work performance suffers, then discipline may be appropriate. And one cannot take a second job, or work on a startup, that competes with one’s employer’s business.
But the second job or startup, itself, cannot be the basis for discipline.
Dana H. Shultz, Attorney at Law +1 510-547-0545 dana [at] danashultz [dot] com
This blog does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact a lawyer directly.