NLRB Evaluation of Personnel Handbook Finds Moonlighting Policy Unlawful

Health care employers should take note of a recent decision of an Administrative Law Judge (ALJ) of the National Labor Relations Board (NLRB) which struck down a number of employer policies in a Personnel Handbook, including a limitation on anti-moonlighting. Anti-moonlighting provisions are common in health care provider contracts and in personnel manuals of health care providers, including group practices, hospitals and other larger health care employers. The reasons for such rules in the health care setting are straightforward and largely non-controversial. They include the fact that risk to patients go up if employees are fatigued at work. Health care providers also may require varying shifts or mandatory overtime. Such rules minimize workplace conflict when employees are unable to satisfy the staffing requirements of their primary employer because of a second job commitment. Obviously, working for a competitor provider is also something that most group practices, hospitals and other providers, seek to limit.

Interestingly, no discipline under the rule was at issue, and the union representing some of the employer's workforce was not a party to the proceedings. In this case, the mere existence of the rule was alleged to have Book with title HR policies and procedures on a tablea "chilling effect" on protected Section 7 activity of employees. The record even is silent as to whether any employees had requested permission for a second job and been denied. Nevertheless, the ALJ concluded that the employer's justifications did not justify the intrusive effect on protected Section 7 rights. In other words, the usual reasons employers include anti-moonlighting provisions did not carry the day with the ALJ for this work setting. Health care employers of all types should be aware of this decision and the need to develop a clearly articulated basis for an anti-moonlighting provision if they continue to include them in their policies and contracts.

Further information concerning this matter can be obtained from Tom Luetkemeyer of the Chicago office—who discussed the decision in detail in the June edition of the Labor and Employment Newsletter—or your regular Health Care attorney.

Subscribe via Email