Navigating Dual Employment: Can My Current Employer Discover My Side Job During Leave?

Hi, I need an expert's advice on the consequences of any issues that might arise due to the following:

1. Now I am working for company A and have received an offer from company B. However, company B is a small company with only 5 people working on new technology. They do not provide PF, and the accepted offer states that job security will not be guaranteed, and there is a huge risk involved.

2. With company A, I shall be on medical leave for 3 months, which will be unpaid. I plan to join company B to assess the stability, and if everything goes well, I will continue with company B. If not, I will continue with company A.

3. The issue is, can company A check whether I have worked during the 3-month leave? What are the other possibilities to identify this? In the worst-case scenario, if they find out, will it lead to employment termination or any other issues as well? Please advise.

4. What precautionary measures should company B take to avoid conflicts?

Please let me know your thoughts on the situation.

Potential Risks of Working During Medical Leave

While working at a company during medical leave, you will be leaving a paper trail. God forbid some legal issue arises during these three months at the new company; you will be in focus. Some employees of your current company may notice you going to a new office while you are supposed to be on medical leave. The concept is flawed from the beginning. You are providing a false excuse using a medical condition to take leave while being fit enough to work. Ask yourself whether such actions are right? Many people pray to be kept out of unexpected problems, but you are inviting problems.

Understanding Dual Employment and Leave Policies

In the first place, I think that the pin-pricking moral laxity emanating from the questioner's own mind regarding the very concept of dual employment has prompted this question.

Basically, employment of a person is a continuous process in contrast to the engagement of a person. In the case of paid employment, the process is cemented by the lasting bond of the employer-employee relationship, which creates mutual obligations of legal and moral import between them. Therefore, in the realm of employment, dual employment, even if not explicitly proscribed, is not allowed by conventional implication.

The Concept of Leave in Employment

The term "leave" in employment parlance means the approval or consent of the employer to permit the employee to be away from their work or place of work for a certain period due to personal reasons. Therefore, there is no severance in their employment relationship during such a leave of absence, notwithstanding the employee's entitlement to salary or otherwise for such a period. As such, the subsisting contract between the employer and employee automatically prohibits their simultaneous contract with another employer during the leave period, even on a trial basis.

In view of the position thus explained already, I think that the last two questions deserve no answers.

Hi,

With the current company, I have some components that I will get if I continue in the service for 3 months. Otherwise, I will lose those components. With the new company I am joining, it is relatively new and I am not sure about the job security. In this context, I want to have a backup without any financial implications, which I am currently undergoing.

Dear colleague,

You are knowingly flouting the legal and moral obligations towards your present employer by choosing to join another company, albeit on a trial basis, under false medical pretext. You are chasing two rabbits, which can cost you your present job if they come to know of it, as double employment is usually not permitted, and many appointment letters carry a specific clause to that effect. The choice is yours.

Regards, Vinayak Nagarkar HR Consultant

As fellow members in the forum, we cannot advise on how to engage in unethical practices, such as double employment.

If you know that the company is new and doesn't have any statutory and compliance-related things in place, then why do you want to join? If you really want to join, then go ahead and join there. Tell your company A that you would like to have the option to return if company B does not work out. This way, you can rejoin after 3 months or so. In company B, you should focus on your job for at least 6 months and then start looking for another job, updating your resume with the experience gained at company B.

Dear Colleagues,

There is no clear law about "Double Employment." Yes, there are references regarding double employment in the Factories Act and Shops & Establishment Act, but they are contradictory.

Understanding Double Employment

The term 'double employment' means holding two jobs at one time. Many companies issue appointment letters with a clause about double employment and also include provisions under the Standing Order to combat double employment. In cases of violation, the job may be terminated.

Some people engage in double employment in other ways, such as working from home and operating a firm in the name of a relative after office hours.

Example of Double Employment Consequences

To clarify, I will cite an example: We once terminated the services of a group consisting of five workmen who were working for another company either by taking leave or during off-hours. The dismissal case was contested at all levels (labour office, tribunal, High Court, and finally at the Apex Court). In that case, all prevailing laws were referred to and supplemented despite provisions in certified standing orders. We won the case under the pretext of "Intellectual Property Right."

Though there is no specific law, double employment is considered an offense under moral turpitude.

Dear Prabhat, my views on double employment

Understanding Double Employment

In common terms, the term 'double employment' refers to holding two jobs. However, in terms of our labor laws, the Factories Act and the Shops and Establishments Acts of each state govern 'double employment' and define its meanings. Interestingly, the meaning of 'double employment' in the Factories Act differs from that in the Shops and Establishments Acts.

The Bombay Shops & Establishments Act

The Bombay Shops & Establishments Act provides in Section 65 that no employee shall work in any establishment, nor shall any employer knowingly permit an employee to work in any establishment, on a day on which the employee is given a holiday or is on leave as per the Act (old act).

Industrial Employment (Standing Orders) Central Rules

Schedule I-B Section 8 of the Central Rules states, “A workman shall not at any time work against the interest of the industrial establishment in which he is employed and shall not take any employment in addition to his job in the establishment, which may adversely affect the interest of his employer.”

Reasons Behind Restriction of Double Employment

One of the reasons behind the restriction of double employment is that man is not a machine, and working for 8 hours or more in a day cannot be continued indefinitely without health consequences. It really is not an act of moral turpitude.

Understanding Moral Turpitude

The word 'turpitude' is defined as a shameful, vile, or corrupt character or acts. Moral turpitude refers to conduct that shocks the public conscience or does not fall within the moral standards held by the community. In a poor country like ours, many workers try to do double duty to earn more. Many guards in housing societies do double duty on the same day. It is economic deprivation that drives people to do this, rather than turpitude of mind.

Dear colleagues,

We are discussing this matter in light of potentially posting a member of the community who seeks advice on whether working with another establishment during the leave period is legal or illegal. We seem to be approaching the issue from a different angle. The Industrial Disputes Act also prohibits gainful employment during a termination challenge petition's pendency. We are now exploring the question of whether double employment is legal or illegal. Interestingly, there has never been any inquiry into the employment status of daily wage/piece-rated earners or individuals engaged in household services or similar work that could be considered double employment. The working nature of these roles is inherently dual, but the situation changes when, for example, a household servant is hired on a monthly salary while performing the same tasks.

The establishment in question is engaged in drawing, design, engineering, and product development work. Should the staff involved in these roles be permitted to engage in double employment for additional monetary gain? The term "moral turpitude" is commonly used in legal contexts, not to target anyone specifically. The concept of a "house of profit" for disqualification and the nature of gainful employment are related in a similar vein. We often struggle with the notion that what we don't have is more desirable than what we do have.

Please review and advise accordingly. Thank you.