Attorney and In-House Counsel columnist Nicole Belson Goluboff graciously details the various types of trouble you can get into by juggling two telework jobs. From the looks of this list--probably not the best idea.
Nicole says:
For some, this could be moonlighting, for others maybe “sunlighting,” or taking time during a day job to perform paid work for a different employer. Although I’m not aware of a particular case that has focused on issues arising from a surreptitious double-telework arrangement, the situation could raise a host of legal questions, including:
Contract/Policy Violations
Has the doubly employed telecommuter violated the terms of an employment contract? A collective bargaining agreement? A telework agreement? A personnel policy prohibiting moonlighting? If the telecommuter is using Company A’s computer resources to do work for Company B, is he or she violating a Company A policy prohibiting non-business use of these resources?
Security Risks
1) Employer Secrets
The double telework arrangement may increase both companies’ risk that the telecommuter will inadvertently disclose their trade secrets or other confidential information – particularly if the telecommuter uses only one computer for both jobs.
If the two employers are in the same industry, the risk of telecommuter misappropriation increases, as well. As you observe, Toni, the telecommuter may breach confidentiality agreements. Similarly, if the two employers are competitors, the telecommuter’s employment with one company terminates, and he or she continues working for the other, the telecommuter may be violating a covenant not to compete.
2) Customer Secrets
The double telework arrangement may also increase the risk that the telecommuter will expose the confidences of the companies’ clients or customers. Here again, the telecommuter’s dual use of one computer further enhances the risk. If the confidences of a company’s clients are exposed, both the telecommuter and the company could face liability.
3) Hack Attacks
The risks that hack attacks present also multiply if the telecommuter is remotely connected to the systems of two employers. For example, Company B might unwittingly transmit a malevolent bug to the telecommuter’s computer(s), and the telecommuter might (also unwittingly) pass it on to Company A’s network. If the telecommuter also transmits the virus to the computer systems of Company A’s clients, again, both the telecommuter and Company A could face liability.
Workers’ Compensation
If the teleworker develops carpal tunnel syndrome as a result of his or her telework – or sustains another injury at home that could be attributable to either job - which employer, if any, will be responsible for workers’ compensation?
Unemployment Benefits
If Company A terminates the telecommuter, the fact that the telecommuter still works for Company B might compromise the telecommuter’s capacity to collect unemployment benefits. A court might conclude, for example, that the telecommuter was still employed and, therefore, not eligible for benefits.
Family and Medical Leave Act
If the telecommuter takes leave under the Family and Medical Leave Act from his or her job with Company A – but continues to work for Company B during the leave - questions could arise concerning whether the telecommuter is entitled to restoration of his or her job with Company A when the leave is over.
Copyright and Patents
If an employee teleworks for two companies and creates, at home, certain intellectual property (a computer program, for example) that he or she provides to both employers for company use, who will own the copyright? The ownership issue may be difficult enough to determine if the employee telecommutes to only one employer: A work created at home may, in some cases, belong to the company and, in other cases, belong to the employee. If the telecommuter works for two companies, there may be a third party claiming ownership. Similar ownership issues might arise under patent law.
Taxes
The double telework arrangement could affect whether a telecommuter is eligible to take the home office deduction on his or her federal tax return. IRS Publication 587 (Business Use of Your Home) specifically describes the prerequisites that home workers with “more than one trade or business” must satisfy to qualify to take the deduction.
Insurance
Which party will insure the home office: Company A, Company B, or the telecommuter? If both companies maintain insurance that covers the home office (or, if one company maintains it and the other requires the telecommuter to maintain it), which party’s carrier should cover a loss, such as a theft, fire or third party injury that occurs there?
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