Howard Levitt: Double-dipping employees aren't doing themselves, or their employers, any favours

Working two full-time jobs at the same time is grounds for dismissal for cause from both jobs

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By Howard Levitt and Peter Carey

No one can serve two masters
— Matthew 6:24

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Those who follow our column know that we are not fans of remote work. Unhappily, despite the lobbies of the WFH crowd, it usually does not work out as well as working on site, for either the employer or the employee.

From the employee’s perspective, there may be a sense of isolation and a fear of losing out on promotions to on-site employees, the latter a reality supported by recent studies. From the employer’s perspective, there are issues of employee productivity and lack of supervision. If the remote employee is situated in another country, that brings a host of other issues, including choice of law and taxation problems.

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But today we are going to discuss another issue that is arising much more frequently than you might think in both the U.S. and Canada.

The problem is that some employees are working multiple full-time jobs simultaneously.

The issue is not entirely a new one.

In three cases that Howard has argued in which employees who were ordered to return to the office instead resigned and claimed constructive dismissal, it was found during the litigation process that the employees did not want to go back to the office in part because they had taken on multiple other jobs and did not want to lose that income.

The problem is particularly prevalent in jobs which involve data management or writing code or other IT functions. Obviously, if the employee is a plumber or a factory worker or somebody else whose attendance is required at work then such double dipping is much less likely, if not impossible.

However, if an employee never sets foot in the office because their entire work function can be performed remotely, then it is possible that they can work multiple full-time jobs. As it turns out, many of them do. We note that this fact reinforces how little knowledge many employers have of what their remote employees are doing and how little many are, in fact, doing.

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Let’s clear something up right away. Working two full-time jobs at the same time is grounds for dismissal for cause from both jobs. Once again, faithful readers will know that this means that there will be no notice provided or severance paid.

We are not talking about some side hustle such as working the occasional evening shift at McDonalds or building bird houses in your garage workshop. That would probably be permissible, providing of course that you are not competing with your employer.

As a full-time employee, you are being paid to provide forty hours a week, minimum in some cases, to your employer. If you are working two full-time jobs you are not working eighty hours a week (take it from us, we have both occasionally put in eighty hours a week and it is not sustainable, at least not past the age of 30). In other words, you are not giving each employer the hours for which you are being paid.

Furthermore, most such employees have employment contracts requiring them to devote all of their efforts to that employer. So, not only is the double-dipping employee stealing from their employer, they are also in breach of their employment contracts. Finally, and importantly, if either job is even remotely competitive with the other, then the employee is competing with their employer. Such arrangements are verboten. Under no circumstances can an employee compete with their employer. That in itself is grounds for dismissal for cause.

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What causes employees to engage in such activity? Well, let’s face it, as the notorious bank robber Alonzo Boyd once said, “I did it for the money!”

However, it can’t be pleasant.

For the employee, it usually means working long hours trying to satisfy the requirements of both jobs and being very careful with communications so that they don’t tip off either employer of the others’ existence. Anyone who has dated two people at the same time will empathize with this predicament.

The employee will typically be terrible at one, if not all, of the jobs at which they are employed. They aren’t building a career and are most likely going to be the first person to be terminated at either job.

For employers, if you have an underperforming, remote-working employee, start checking their LinkedIn page and monitor their email communications because there is a chance that you are being short-changed. If you find that one of your employees is working full time at another job, you will be able to terminate them for cause.

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For the employee, just stop. Quit one or both jobs and find a job that interests you enough and pays enough that you don’t have to cheat your employer.

Howard Levitt is senior partner of Levitt Sheikh, employment and labour lawyers with offices in Toronto and Hamilton. He practices employment law in eight provinces and is the author of six books including the Law of Dismissal in Canada. Peter Carey is a partner at Levitt Sheikh.

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