Moonlighting in Halacha
This past week a terrible tragedy occurred in Scotland regarding a medical doctor. It seems a doctor who was moonlighting did not inform his hospital that he was working another job. On account of his over-tiredness, he did not check that a patient was overmedicated. Nor did he check on the patient. The patient died, unfortunately. This incident highlights an important point in halacha.
The Bureau of Labor Statistics informs us that last year seven million American workers were working multiple jobs. Out of a total employed workforce of 144 million in this country that means that one out of 20 people at work are actually working double jobs. The question is: Are there any obligations from a halachic perspective that these workers have to their day-job employers? Indeed, is having the extra job permitted in the first place?
It is also interesting to note what types of jobs most people have as their second job. Some babysit, others bartend. Some cater. And many run an internet website (more on this as the article progresses).
There is a fascinating Tosefta in Bava Metzia (8:2) which tells us that a worker is not permitted to perform his own work at night time and then hire himself out for work in the daytime. The Tosefta thus introduces a fiduciary obligation placed upon the employee to his potential employer to make sure that he is sharp and alert for the work that he is to be hired to do. The Shulchan Aruch (CM 337:19) quantifies this as the halacha.
Rabbi Ben Zion Meir Chai Uzziel, the first Sefaardic Chief Rabbi of Israel, writes in his Piskei Uziel (Sheilot HaZman #46) that this same legal theory also obligates the worker must also have a pleasant attitude in demeanor to his employer, fellow employees, and customers or clients.
Dayan Blau zt”l in his work “Pischei Choshen” (chapter seven) discusses a case where a fundraiser for one institution that paid for his travel expenses travels to America to raise funds and he moonlights for another institution. Dayan Blau forbids the practice. He similarly forbids other similar activities as well.
Aside from this, however, most employers nowadays have a published policy or handbook. Some of them do have formal policies on moonlighting. If so, then there is a halachic obligation to abide by this policy in addition to the halachic requirements. This is also prudent in New York State which happens to be an “at will” employment state where employees can be terminated at any time when faced with no employment contract.
There is, of course, an exception to moonlighting,at night when it is clear that the employer is not paying the employee a full-time salary, or when the employee is only part time. Then it would be understood that the employee needs to make another salary in order to pay the bills.
Many of the aforementioned moonlighters have their own business as a second job. There is a huge Yetzer HaRah to use the equipment and supplies of the day-job employer for this purpose – even if one only “moonlights” on the lunch or coffee break. This too is forbidden and is looked upon as theft in the eyes of halacha. If one needs to access the web for something not related to job #1, one should either bring one’s own iPad or ask explicit permission from the employer. Merely assuming that the employer would not mind is not sufficient. Also, the wifi connection itself may be problematic if it is not open to the public.
The Talmud (Bava Basra 88a) cites a debate between Rabbi Yehudah and the Chachamim as to whether one who borrows without permission has the status of a borrower or that of a thief. The Chachamim view him as a thief. The Rif, the Rambam, and the Shulchan Aruch all rule in accordance with the Chachamim.
The language that the Tur Shulchan Aruch uses (C.M. 359:5) is “Nikra gazal—he is termed a thief.” The question is whether this term is referring to a Biblical prohibition or a rabbinic prohibition. The Gemara (Berachos 6b) invokes this same expression to describe someone who doesn’t respond to a “hello”; if someone says hello to the other and the other does not respond, he is called a thief. Clearly in that case, this cannot be a Biblical notion, as there is no actual theft of property. This would indicate that the term only describes a rabbinic prohibition and not a Biblical one.
The Smah, however, one of the foremost commentaries on the Tur Shulchan Aruch, indicates clearly that he views the Tur’s words as indicating a Biblical prohibition (see note 12 on the Tur).
But wait! There is nothing missing here! How could he be considered a thief? He is a thief because he took without permission, even if there is nothing missing. The Rashba (Bava Metzia 41a) states this quite clearly, as does Rashi.
Often an employee may rationalize the amount of time spent on the computer as not being excessive. One must ask oneself the following question, however: Who is more likely to consider something as not being excessive—the employee or the employer? One does not have to be a rocket scientist to realize that the employer would be more likely to consider something as excessive than would the employee. And unfortunately for the employee, the ball is in the court of the employer on this one.
The second factor is the fact that it is being done on company time. In this regard, there are two types of employees: management-level employees and hourly employees. Clearly, an hourly employee would be illicitly taking money from his employer for any minutes beyond excessive that he has spent infosnacking on the Internet. (And no, the non-excessive minutes are not cumulative.)
A management-level employee who receives a set salary to make sure that a department runs efficiently may have more leeway in this regard, but it would still depend upon the employer. It would seem that there is an obligation to find out where one’s employer stands on such issues.
Are medical residents still working around the clock? How would its effects on alertness differ from those of moonlighting?
A few other considerations:
1. Written vs. unwritten policy. In a large company, the written policy typically comes from lawyers who are trying to do what will look best at court and therefore are very strict. The unwritten policy you get from your manager is often a lot more lenient. Which truly represents the business?
2. Variable workload. Some weeks there is an urgent project, and the company needs you to work extra. Other weeks, there are only a few back-burner issues. You still need to be available the whole time, because if somebody has a question they need a quick answer – but there isn’t that much actual work.
3. Side projects that actually help the primary employer. Often, your skills are a big part of your value proposition. When there isn’t a lot of work, learning new and potentially relevant skills is a valid use of work time. I have a number of skills I learned from edx.org or udacity.com and then applied on my day job.
4. Business travel. It makes little sense to take two laptops on an airplane, and none to risk one’s personal laptop. Is it wrong to use the work laptop for personal things outside of work hours, when you are away from home, family, and personal equipment because you’re traveling on behest of your employer?
These are actual issues in my job, BTW – not things I invented randomly to ask questions.
the relevant question is identifying realistic cases where the halakha and common practice differ.
In paragraph 5, please correct “Sefaardic” to “Sefardic.”
Why anybody would even want to work more than forty hours per week, is beyond my understanding. I realize that one cannot really become wealthy if one confines onerself to working only that much per week, but to my way of thinking at least, there are things in this life that are even more important than making boatloads of money, such as enjoying one’s life during the hours that one is not working.
“Are medical residents still working around the clock? How would its effects on alertness differ from those of moonlighting?”
Yes, even after recent reforms 24+ hour shifts are still permitted. And even those reforms resulted in major pushback from residency directors. This is a huge problem and it is one of the many reasons why you will be very likely to get better treatment in a community hospital rather than an academic medical center.
I find it fascinating that any article on Cross-Currents dealing with what I would broadly call “the wars of the Jews” gets dozens of comments, while something like this, which provides food for thought about practical aspects of the day-to-day life of most of us — got only a handful.
My two cents to Raymond: Many of us work more than 40 hours per week because the basic costs of observant Jewish life require “boatloads of money,” especially if you have a large family. That such a provocative statement has not yet elicited any other reactions reinforces my wonder with regard to my first point above.