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Don't Land in Legal Hot Water When Moonlighting

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Many of us at times have held a second job. And although moonlighting is a boost to your income, the practice comes with potential legal risks.

One of the first things you need to consider is your main employer's policies regulating moonlighting. Some employers may have no policy while others may be quite clear about tolerating your second job. In some instances, the employer may require you to confine outside work to your days off. Others may prohibit you from moonlighting with a competing hospital. Still others may only allow moonlighting for a specific number of hours.

Even if a moonlighting policy does not exist in your workplace, or it is vague as to requirements and prohibitions, you still may be risking your main job if an employer views it as breaching your duty of loyalty.

You might be surprised that laws in each state require employees to conduct themselves in a manner that is not contrary to their employer's interests. And how loyal you are to your employer may be measured by the degree of your job responsibilities. For example, a CNO would be expected to conduct himself or herself with a higher degree of loyalty than a newly hired RN. Because the CNO has access to the inner workings of the hospital, including finances and confidential information, the CNO has a "fiduciary duty" that requires complete integrity, reliability and fidelity. Moonlighting is not restricted to working for a second employer. The definition also covers starting your own business, such as an online continuing education company. This type of moonlighting is a bit more flexible and allows you to handle the requirements of the company on your time and at any time other than when you are working for your regular employer. But this type of moonlighting also has risks. Let's say your regular position at your hospital is the director of the facility's patient education department. As part of your responsibilities in that position, you may have developed and used patient education materials for the hospital's patients and families, made contacts with vendors that help get your materials up and running, and managed a budget for your department. This entire process most likely involves information that may contain trade secrets of the hospital, meaning any information developed by the hospital not generally known in the industry and provides economic benefit to the hospital because it is confidential. In addition, the education materials you developed most likely are owned by the hospital. Using them in any manner would violate your obligation not to compete with the employer.

In fact, your employee handbook may have a "noncompete" provision, which prohibits you from competing with another business similar to its own for a certain period of time within a certain geographic area.

Although such noncompete agreements are found most often in employment contracts if you are hired to high-level positions, such as CNO or vice president for nursing services, they can affect you as a director of a department or as a staff nurse. Using any trade secrets, materials, confidential information, processes or contacts in establishing your new online business that can be linked to your current job may result in a lawsuit against you for breaches of your noncompete agreement and use of your employer's trade secrets.

If you moonlight, follow these basic suggestions:

- Be certain to carefully review all documents that relate to you in your current position governing non-compete agreements, trade secrets, and confidentiality obligations. - Determine your state's law on an employee's duty of loyalty to the employer. - Carefully evaluate if your moonlighting position puts you at risk for not completely fulfilling your obligations of your current job. - Consider whether you can successfully establish a moonlighting company or job without breaching that duty, if you are in a position that carries a fiduciary obligation to your employer, - Seek legal advice from a nurse attorney or attorney before you begin the process of establishing your moonlighting job. - With your attorney's help, share your desire to moonlight with your employer, providing all the information it needs to make a decision that can support you in your second endeavor. Nancy Brent's posts are designed for educational purposes only and are not to be taken as specific legal or other advice. Individuals who need advice on a specific incident or work situation should contact a nurse attorney or attorney in their state. Visit The American Association of Nurse Attorneys website to search its attorney referral database by state.  

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