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*Erica Hausdorff

Colorado, California, New York, and North Dakota legislated off-duty lifestyle discrimination protections.[1] The statutes aim to protect an employee’s off-duty conduct during non-working hours.[2] The off-duty lifestyle discrimination statutes represent an attempt at legislatures balancing the competing interests between employees and employers. However, the legislatures failed to account for the introduction of modern-day moonlighters. Modern-day moonlighters create problems for employers who do not wish to have employees working side hustles in the eyes of the general public. Nevertheless, not all modern-day moonlighters create problems for employers. For instance, some modern-day moonlighters’ online presence may have no relation to the employee’s primary job and thus, may not create any type of material conflict of interest. Under that scenario, an employee should be afforded protection to ensure that an employer keeps its “proverbial nose out of an employee’s off-site off-hours business.”[3] Furthermore, the statistics surrounding moonlighting suggest that it will continue to remain a problem in the United States.[4] However, the current landscape of off-duty lifestyle discrimination statutes does not account for these continuing moonlighters. The current statutes are either narrowly written[5] so as to exclude moonlighters from receiving protection or lacking any substantive protections generally.[6] In light of the moonlighting statistics and the troubles with the current off-duty lifestyle discrimination statutes, a model off-duty lifestyle discrimination statute aims to amend these issues. The proposal captures an array of competing ideals including, employers’ interests, employees’ interests, case law surrounding the off-duty lifestyle discrimination statutes, and case law pertaining to moonlighting generally. Furthermore, the model statute aims to address some common-sense concerns, including but not limited to, an employer’s concern over an employee’s productivity levels and the amount of income a modern-day moonlighter earns.

Proposed Model Statute:

1.Definitions. As used in this section:

a. “Work hours” shall mean, for purposes of this section, all time, including paid and unpaid breaks and meal periods, that the employee is suffered, permitted or expected to be engaged in work, and all time the employee is actually engaged in work. This definition shall not be referred to in determining hours worked for which an employee is entitled to compensation under any law.

b.“Discriminatory or unfair employment practice” shall mean, for purposes of this section, when an employee is forced to quit because the employer has made working conditions unbearable, including but not limited to, discrimination, harassment, or mistreatment.

c.“Bona fide occupational requirement” shall include but is not limited to, an implied duty of loyalty with regard to public communications.

2. It shall be a discriminatory or unfair employment practice for any employer to refuse to hire an applicant; to discharge an employee; or to accord adverse or unequal treatment to an individual or employee with respect to application, hiring, training, apprenticeship, tenure, promotion, upgrading, compensation, layoff, or a term, privilege, or condition of employment, due to that applicant’s or employee’s engaging in any lawful activity or conduct associated with the protected activity or conduct when done off the premises of the employer during nonworking hours unless such a restriction:

a.Relates to a bona fide occupational requirement or is reasonably and rationally related to the employment activities and responsibilities of a particular employee or a particular group of employees, rather than to all employees of the employer; or

b.Is necessary to avoid a bona fide and actual, material, substantial conflict of interest with any responsibilities of the employer or the appearance of such a conflict of interest.

3.This subdivision shall not be construed to invalidate any agreement that requires an application for a position that is not subject to a collective bargaining agreement to sign an employment contract that prohibits either the employee from moonlighting or limits the amount of time an employee may moonlight. Nonetheless, an employer must continuously enforce the policy in order for a court to accord any evidentiary weight in a court of law.

4. As it relates to an employee’s lawful activity or conduct, an employer may consider whether that activity or conduct results in substantial monetary benefits. Substantial monetary benefits, includes but is not limited to, the employee earning more from his/her side job than from the primary job.

5.The provisions of subdivision 2(a) and 2(b) shall not be afforded to employers when:

a.An applicant or employee acts as a whistleblower or was in a position analogous to a whistleblower.

* J.D. Candidate, 2020, Florida International University College of Law

[1] See Colo. Rev. Stat. § 24-34-402.5 (2019); Cal. Lab. Code §§ 98.6(a), 96(k) (Deering 2019); N.Y. Lab. Law § 201-d(2)(a)–(c) (Consol. 2019); N.D. Cent. Code § 14-02.4-01 (2019).

[2] Id.

[3] Coats v. Dish Network, L.L.C., 303 P.3d 147, 149 (Colo. App. 2013).

[4] 4.9 Percent of Workers Held More Than One Job at the Same Time in 2017, U.S. Bureau of Lab. Stat. (July 19, 2018), (the multiple job holding rate remained at 5% for the last seven years).

[5] See N.Y. Lab. Law § 201-d(1)(b) (Consol. 2019).

[6] 83 Ops. Cal. Att’y Gen. 226, 229 (2000); see Barbee v. Household Auto. Fin. Corp., 113 Cal. App. 4th 525, 536 (2003).