Employer Moonlighting Ban Unlawful, NLRB Judge Rules

May 18, 2018

A National Labor Relations Board administrative law judge has held an employer's handbook restrictions on moonlighting without permission are unlawful because of its potential impact on an employee's right to engage in union activity without his or her employer’s knowledge or interference.

The judge applied a new balancing test that was established by the NLRB last year under a Republican majority.  The test weighs the rationale for an employer’s rule against its impact on employees’ rights.  The employer had argued it had a legitimate interest in ensuring its employees were well-rested and didn’t go to work for competing companies.  The judge noted the employer could address its concerns “with a better-tailored rule.”

Why the case is worth watching: The decision demonstrates that even under the standards of a Trump Board, many common employer policies could be vulnerable.  It remains to be seen whether that Board overturns this and similar decisions by the administrative law judges.