SECONDARY EMPLOYMENT FOR FURLOUGHED EMPLOYEES – WATCH THOSE CONFLICTS…AND UNFORTUNATE WORD CHOICES

A small splash was made recently when a Sacramento television news station reported that the California Department of Public Health had issued a memo to furloughed employees that they should consider taking a second job at Target or Macys.

It seemed the government workers at the DPH didn’t like the idea of being told to moonlight at local retailers.  And who can blame them.

Only that’s not really the way it happened.  (I know, hard to believe a local television news report might have misinterpreted something and then blown it all out of proportion.)

Nonetheless, this provides a few valuable lessons for both employers and employees when circumstances are such that secondary employment may become necessary.

THE SPLASH

This all started with the airing of a local news report in Richmond, California, which noted that the California Department of Health had issued a memo to employees which the report described as follows: 

“Adding insult to injury, state health department workers have received a memo from their managers telling them where they can turn to pick up some extra work, and where they can't.”

According to the report, the CDH suggested that employees consider second jobs at “venues such as Macys, Target, Kohls, etc.”  Furloughed CDH workers found this “insulting.”

However, is this really what the memo says?  Would a government agency really circulate a memo to its employees suggesting they take jobs at Target to supplement their income?  (Don't answer that.)

THE MEMO

We found The Memo (thanks to the Sacramento Bee website).  Needless to say, it is not urging furloughed public employees to run out and find jobs at mass retail outlets. 

It does, on the other hand, help educate employees about the rules for secondary employment.  The memo was actually a response to increased interest by employees in understanding the rules for secondary employment – what can, or can’t, they do to earn additional income, particularly during the furloughed days.

THE LESSONS

This whole debate raises a number of good lessons for California employers and employees alike:

LESSON 1:  Secondary Jobs Are “Generally” Fine:  Moonlighting has a long and fabled history in our society as a way to make ends meet.  But that doesn’t mean employees can take any secondary job on the theory that it’s the employee’s free time to do with as he or she wants.  See Lesson 2.

LESSON 2 (for employees):  Watch Those Conflicts Of Interest:  Whether you are a full time worker, a government worker, a furloughed worker, or a part time worker, you owe your employer a statutory duty of loyalty.  (See Labor Code Sections 2860 and 2863.)  Included in this is an obligation to avoid putting yourself in a conflict of interest situation, or engaging in activities that are incompatible with your duty to your employer.

For instance, if your job is evaluating restaurants, you should not get a secondary job at one of those restaurants you are supposed to regulate.  If you work for a law firm, you should not take a second job at another law firm (which way do you steer that new client?).  If you work with dangerous machinery at 6:00 a.m., do we need to tell you not to take that strenuous graveyard shift job that leaves you exhausted just as your 6:00 a.m. job begins?

Pretty basic.  Indeed, though written in Government-Speak, this is really all the CDH memo was trying to say:

“In accordance with Government Code Section 19990, employees should not engage in any employment, activity or enterprise which is clearly inconsistent, incompatible or in conflict with his or her duties as a State employee.

Many employers have specific policies regarding conflicts of interest and secondary employment.  (If you don’t, you should think about adding it.)

LESSON 3 (for employers):  Watch How You Word Your Memos!  Especially if you are a government agency who has just furloughed most of your workforce (while the constitutional employees are not furloughed), be sensitive to how you write and say things.  Words will be taken out of context when people are angry.

Here’s where the CDH memo got a little sloppy, right towards the end:

“It is not our intent to prevent or discourage outside employment opportunities; rather only to remind employees to be mindful of the types of employment that are compatible with their regular employment.  Employment to venues such as Macys, Target, Kohls, etc. would not be considered in conflict with a State employee's regular employment.  Working hours for the second employment would need to be of such a nature as not to impact the performance of an employee's regular employment.”

Did the CDH really need to mention the retailers by name? 

Did the CDH really think Target was going to hire furloughed state workers three days a month when the company has resumes from plenty of unemployed people who would love to work full time?

Employers, you don’t need to hire a PR firm before sending out memos to employees hoping to help address difficult issues…but maybe run the draft by a few trusted employees before hitting the “send” button.

LESSON 4:  Go To The Source:  If that crazy sound bite seems a little unbelievable (“State Health Department tells its employees to get a new job at Target.  News at 11.”) go to the source.  You’ll be richly rewarded.

(For an HR Executive article on the memo in which Yours Truly is quoted, click here.)