Employers’ interests can come into conflict with employees’ freedoms on some second jobs
By Jeffrey R. Smith
Moonlighting — it’s not just a 1980s television series, it’s a reality for many workers, especially in tough economic times. It may be that someone can’t find a full-time job, so she works two part-time ones. Or maybe finances are so tight one job just doesn’t cover the bills, or an employee has a hobby that turns into a side business. People working two or even more jobs isn’t all that uncommon. But should an employer have a say in what the other job is?
There are certain circumstances where it might make sense for an employer to be concerned at what an employee’s other pursuits are, particularly if there’s a risk the other employment could interfere with or compete with her regular work. This issue came up in a case earlier this year, where an employee of Scotiabank in British Columbia joined a real estate firm.
The employee was a customer service supervisor who oversaw other customer service employees and sometimes made recommendations to customers on where they could find certain financial services, either at her branch or other branches. For a while, the employee had a side business selling party candles and the bank had no problems with it. However, 12 years into her service with Scotiabank, she studied for and earned her real estate licence. She then joined a real estate firm and worked evenings and weekends when she wasn’t at the bank.
Scotiabank raised concerns with potential conflicts of interest, given it offered some similar products and services as the real estate firm. The employee vowed she would never do any of the real estate business while working at the bank and had no previous issues in her 12 years of service. However, the bank was concerned not only with the risk and temptation to do some business during its hours — the nature of real estate work makes it difficult to limit it to specific hours — but also the perception customers might have if they knew of her other occupation when they dealt with her at the bank. When the employee refused to quit her real estate job, the bank fired her. The termination was upheld by the B.C. Provincial Court when the employee sued for wrongful dismissal.
The bank’s concern was understandable — it dealt with financial products and the employee’s job as a real estate agent could present a conflict of interest. Since she also dealt directly with customers, its concern on perception was legitimate as well. But given the employee had a lengthy term of service with no problems and expressed loyalty, should it have been more lenient? How much should an employer dictate what other work an employee can do? Or should it be allowed to protect its interests against any risk presented by such circumstances, whether real or perceived?
Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at [email protected]. For more information, visit www.employmentlawtoday.com.
