Moonlighting: Know The Risks – Know Your Rights

By Mark Hollinger, WPPA Staff Attorney

Before you consider taking any second job there are several factors you should first consider. Unless your second job is also a job where Employe Trust Funds treats you as a “protective occupation participant” eligible for duty disability benefits, as provided for under section 40.65, Stats., an injury or disease sustained while performing this second job that renders you incapable of performing your primary job as a law enforcement officer may create a tremendous hardship for you and your family.

There are several eligibility requirements for statutory duty disability benefits, but one criterion is that you must be injured while performing your duty or contract a disease due to your protective occupation. As you know, the physical and mental requirements of your law enforcement job are exacting. An injury or disease stemming from a second job that would make you incapable of performing law enforcement jobs can rob you of your career because of these exacting physical and mental requirements.

You should also consider the similar risks a second job may pose to your level of benefits under worker’s compensation. If you are injured or contract a disease due to a second job, your benefits will be calculated based upon your income on that second job. Since the income generated by such a second job is very likely to be far less than your primary law enforcement work income, you may find yourself temporarily out of work due to a workplace injury or disease and with only skimpy benefits to sustain you and your family.

You should also consider the risks inherent in a second job due to the types of situations such a job may put you in. A law enforcement officer has a duty to enforce the law and report suspected crimes at all times. Consequently, personal physical risk and potential conflicts of interest situations are more or less present depending on the type of second job you are engaged in. For example, if your second job is as a part-time employee of a towing service, you may find yourself with divided loyalties if upon arrival at an accident site you are requested to tow a vehicle without a report of the accident ever being reported. As an employee of the towing service, you should perform the service requested, but as a law enforcement officer you put your job at risk if you fail to report this information. This example shows how working a second job can increase the likelihood of your facing disciplinary charges for off-duty conduct. Generally, disciplinary actions for off-duty conduct are sustained when there is a nexus between an officer’s off-duty conduct and his or her on-duty responsibilities.

If, after considering the substantial risks, you nonetheless decide to work a second job, you should first consult your collective bargaining agreement to see if any restrictions on such work have been negotiated. If such contractual language exists and is in any way unclear to you, speak to your association president or business agent for the proper interpretation of these provisions.

Often times your collective bargaining agreement does not deal with the issue of moonlighting. Rather, your employer may unilaterally create rules and regulations on the subject. If this is the case, your local association should contact your business agent immediately so that we can determine whether such rules and regulations are a mandatory subject of collective bargaining, or whether the employer has the right to take such action unilaterally.

The determination of whether or not rules that regulate outside employment are rightfully a mandatory subject of bargaining has not been conclusively decided in Wisconsin. But if presented with the issue, the Wisconsin Employment Relations Commission would probably find that employers can unilaterally establish rules designed to ensure that a second job does not interfere with your ability to function as a law enforcement officer. For instance, rules that regulate potential conflicts of interest, such as, how many hours per week you work your second job, or rules on whether you are permitted to work for a tavern, are likely to be legitimate unilaterally created rules. If your employer unilaterally creates rules on this subject, do not allow such rules to be applied without challenge because unchallenged rules that have been repeatedly applied may become the “status quo” and therefore negate any duty the employer may have to bargain.

Moonlighting is a more complicated question than it appears at first glance. Consider your options and risks carefully. If your employer regulates moonlighting, make sure the employer has the authority to make such regulations. I also advise talking to other people you trust who have performed the type of second job you are contemplating. They are likely to have valuable experience you can consider when deciding whether a particular second job is right for you.

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