Can you be fired if you take on a second job? Labor lawyers weigh in
With the rising cost of living, more Filipinos are turning to side hustles, freelance work, and part-time jobs to supplement their income. For many, taking on a second job has become less of a choice and more of a financial necessity.
But can employees legally work for another employer while keeping their full-time job? And if they do, can their primary employer dismiss them for moonlighting?
PhilSTAR L!fe spoke with labor law experts to break down what Philippine laws say about holding a second job and the responsibilities both employees and employers should keep in mind when it comes to outside employment.
Can you be fired for having a second job?
Labor lawyer Atty. Adrian Bustos said that while moonlighting is not illegal under Philippine law, this comes with certain conditions.
"The employee can only be dismissed if there is a valid ground, usually a combination of if there is a provision in the employment contract or company policy prohibiting such, and if such prohibition is reasonable under the circumstances particularly as to conflict of interest and effect in work performance," he said.
Fellow law practitioner Carlo Saplan added that employees are also at risk of getting dismissed if they're working for a "direct competitor of the company," if they have "access to confidential or proprietary information," or if they are a managerial employee as this is a "breach of confidence."
But what if the contract does not explicitly specify whether having a second job is prohibited? Does this mean you need to disclose it?
Atty. Chelsea Liao-Ariza said, "Strictly speaking, no. If the contract and the company policy are both silent, there is no automatic legal duty to disclose."
"But that is not the end of the analysis. The moment the second job starts eating into the time and the work you owe your first employer, for example if you are servicing another company while you are on your eight hour shift, then disclosure becomes necessary. At that point you are shortchanging your employer, and you should not hide it," she added.
What to watch out for
According to Liao-Ariza, while many contracts contain an express ban on outside work, there are also some that "restrict it indirectly."
"For example, a contract may prohibit the employee from engaging in any business that directly or indirectly competes with the employer, or from soliciting the employer's own clients to offer them his services on the side. Once the employee crosses those lines, the issue is no longer the second job. The issue is the breach of the contract," she said.
Citing the Molina v. Pacific Plans, Inc. case, Liao-Ariza explained that the Supreme Court acknowledged that moonlighting may be an economic necessity for many workers, but at the same time held that "employers are entitled to the assurance that their employees are not disserving them."
Even if there is a valid ground for dismissal, however, she noted that the employer cannot simply dismiss the employee on the spot.
"The employer must still observe substantive and procedural due process, meaning the twin notice rule and a real opportunity for the employee to explain his side. A valid ground that is enforced through an invalid procedure will still expose the employer to liability," Liao-Ariza said.
The dos and don'ts of outside employment
A second job may mean a bigger paycheck, new skills, or a means to keep up with rising expenses, but before saying yes to that side hustle, it's worth knowing that both employees and employers have responsibilities that come into play.
Bustos advised that it's "always best to make things black and white in the employment contract just like in other types of contract."
"As I always tell my clients, students or audience: 'Good fences make good neighbors,'" he highlighted.
"You are executing a formal contract not because you do not trust each other, but because you want to make sure that your understanding is the same as other other party's understanding of the contract," he continued.
Saplan echoed the same sentiments in that the employee must first check whether moonlighting is prohibited under their employment contract or company policy.
It's also important to check whether the second job is a direct competitor of the employer, or if they have any information that is confidential or proprietary in nature that "requires a higher degree of diligence in handling the same."
As a rule of thumb, Saplan said it's best to review the guidelines set by the Department of Labor and Employment through their Department Order No. 147-15.
For employers, Liao-Ariza urged them to say so at the outset if they do not allow outside work.
"Discuss it with the applicant before he is hired, and put it in the employment contract or in a clearly written and communicated company policy. Do not spring it on the employee after the fact," she said.
"The policy should also be reasonable and connected to a legitimate business interest, such as protecting company time, confidential information, or client relationships. And when a violation happens, enforce it through due process, not through a summary dismissal," she added.
At the end of the day, she highlighted that it's all about having "good faith on both sides."
"Employers should be upfront about their rules. Employees should give their employer the full time and loyalty they are paid for. Moonlighting only becomes a legal problem when one of those two things is missing," Liao-Ariza said.
