Written by Michelle Jones
Published: December 13, 2013 at 4:26 PM [UTC]
Did you know that many employers ban moonlighting? It is legal. This can be a concern when you are a musician and having to “pay the bills” by doing other work. If you are employed by someone (not as an independent contractor, but as an actual W-2 employee), the employer can ban you from doing other work on the side. Their reason? They are paying you to do a job to the best of your ability, and if they think you are not giving your best to them, then they may want to replace you. They can even sue you!
This can be especially tricky when you are employed as a musician under a W-2, and then you also do work on the side as a freelance musician. The employer is expecting you to come to work fresh and ready to do a show/performance, and does not want you tired and exhausted from where you just came in after driving all night from playing another gig in another state. Nor do they want you to come in late because your other gig ran late that day before your scheduled shift.
According to http://www.beliveaulaw.net:
"Employers also have a good reason to object to moonlighting if it affects the employer’s business interests. For instance, employers might certainly want to prohibit workers from moonlighting for a competitor, or even in a related business. And they might want to prohibit workers from using company time or resources to pursue side activities.
"Employers might also want to require workers who moonlight to inform the employer of the fact that they’re moonlighting, along with what sort of work they’re doing and for whom they’re doing it. This gives the employer a chance to figure out whether what the employee is doing is actually detrimental to the company.
"And certainly, employees can be prohibited from stealing trade secrets or customers.
"One of the more contentious issues involves what happens if a moonlighting employee invents something or develops a new process that is of value to the employer. Some employers specifically say that if an employee develops “intellectual property” on the side – a new invention, technique, process, software, etc. – the employer has the legal rights to it."
Wow! This is definitely something to consider when you work for an employer. They may want to claim that your own work (even your musical arrangements) belong to them, especially if those arrangements are used in that employment. What else do they “think” they own? I know that a large entertainment company has fired animators for creating a character outside on their own time and has legally won rights to such creations. The explanation included the justification that the animator was saving his best work for his own purpose and giving the employer second-rate work. In this scenario, I can understand why the employer was in the “right.” The animator was doing something identical to his job description as a side business. But with musicians and other jobs, I think it can be a fuzzy line.
A real example: As a musical performer for a large employer, I am hired to perform certain musical selections given to me in advance by the employer. My job is to practice and know these pieces and perform them well. My job is NOT to arrange them for the rest of the group, nor is my job to provide the music to the group (even as a leader). My job as leader is to take the music given to me, organize it for the event in order, and lead the group, including determining when to take breaks, etc. This employer does not own any of my arrangements that I may do on the side as arranging is not listed in my job description. Arranging is a completely different category and under a different job classification that is spelled out and covered in the Collective Bargaining Agreement (CBA.) If this were to ever be tested or questioned, there is written record of what is allowed and what is not allowed. But, not every employer has a CBA or clearly written job description for their employees.
So how do you protect yourself and still pay the bills? First and foremost, make sure that the employer knows you are also a freelance musician and has approved it. Find out if there is a policy about moonlighting. I know many teachers who are freelance musicians, and their schools/employers celebrate the fact that their faculty members are also working professionals. Some schools love to promote these facts, and even use them as marketing tools for recruiting prospective students. As long as the extracurricular work does not interfere with the regular work, most employers allow moonlighting. I strongly suggest that you find an employer that encourages this with their employees.
Secondly, communicate with your employer about your moonlighting. Many times, an issue arises due to lack of communication. If you’re open with your employer, they tend to be more understanding. The fear of being fired or even sued should outweigh the fear of them saying no to you.
Finally, before seeking or accepting a position as an actual employee, ask others in the company about their experiences with that employer. This can give insight as to whether or not you will want to work there.
I am sure there are many other things to consider (non-compete clauses, proprietary work, etc.), and this is where I would suggest that you contact an employment attorney. As a contractor who hires independent contractors, I have worked with several entertainment and employment attorneys to create agreements to protect myself, my companies, my ideas, my work, and even my arrangements, while allowing musicians to continue to freelance in other musical work. Just as an employer is investing time, money and training in employees, I spend time, money and training in my independent contractors. For this, I ask that they give their best performances every time when I hire them. As a performer, I try to give my best performances EVERY time, no matter by whom I am hired.
It is hard to say “no” to gigs, especially during the feasting season, but you must remember that you are only human and that you must always give your best to the person hiring you. This may mean saying no to another gig that would cause you to be tired, unprepared or late for a different event. However, you must also remember that the employer/contractor and the entire rest of your team/band are counting on you to do your job to the best of your abilities. Don’t let them down just to make an extra dollar or two! Your poor or sloppy performance could cost everyone involved (especially you) future work and gigs.
Some things to think about as you prioritize your life and your gigs calendar, while looking at your budget for the coming year….
I encourage you to read more at my website link to vinylinist.com
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