If you are eligible to take leave under the Family and Medical Leave Act (FMLA), your job should be protected if you need to take time off from work from your job with a covered employer as long as you or your family member has a serious health condition. The FMLA entitles eligible employees to take up to 12 weeks off from work for various types of medical issues while protecting their jobs. If you are granted leave under the FMLA from your primary employer but also have a second, part-time job, you might wonder whether you can continue to work at your supplemental job while you are on leave. Here is what you need to know about moonlighting or working part-time while you are taking leave under the FMLA from the employment attorneys at Swartz Swidler.
Understanding the FMLA
The FMLA applies to employers with at least 50 employees who work within 75 miles of each other. Employees who work for covered employers can qualify for leave under the FMLA if they meet the following conditions:
- Worked a minimum of 12 months for the employer before requesting leave
- Worked at least 1,250 hours during the last 12 months
Eligible employees can take 12 weeks off from work in 12 months to care for their medical conditions or those of their immediate family members. The law also protects military service members. You can take up to 26 weeks of leave from work if your family member is preparing for a military deployment or to care for a seriously injured service member’s service-related injuries.
The FMLA applies to private employers with 50 or more employees and state, local, and federal agencies.
Working Part-Time While Taking FMLA Leave From a Different Employer
If you are taking FMLA leave from your primary job, your other employer can’t force you to work. If you want to work part-time at a second job while taking leave under the FMLA from your primary job, whether your primary employer can discipline you for doing so depends on a couple of things, including whether you obtained your FMLA leave fraudulently and whether your primary employer has a policy in place through which it forbids all employees from working elsewhere. Under 29 CFR 825.216(e), employers who do not have these types of evenly applied policies against outside work in place cannot deny FMLA benefits to an employee who works elsewhere while taking FMLA leave.
Employer Policies Against Moonlighting
Some employers have no-moonlighting policies in place for all of their employees through which outside employment is forbidden. If your employer has this type of policy and applies it uniformly to everyone, it will continue to apply to you while you are out on leave under the FMLA. However, if your employer does not expressly forbid outside employment for all employees through a company policy, the FMLA does not prohibit you from working part-time at a second job or moonlighting while you are away on leave.
However, if you ask for FMLA leave and provide your employer with false information to get your request approved, your rights to have your job protected and to continue receiving your medical benefits while you are away on leave will not be protected. For example, if you lie to your employer and tell them that you need to leave because your child is seriously ill with pneumonia, requiring you to stay home to care for them, you will not be protected by the FMLA if your child is not truly ill and you instead use the time to work at a second job. If your employer discovers that you requested leave under the FMLA under false pretenses, you can be disciplined.
By contrast, if you continue working at your part-time job delivering pizzas at night while you are out on FMLA leave to take care of your sick child during the day, your employer can’t discipline you for working at your second job while you are on leave if it doesn’t have a no-moonlighting policy. Your employer can only take punitive action against you for working at a second job if you have been specifically informed that outside employment is not allowed under your company’s policies.
Your employer’s policy can’t state that employees are prohibited from working while they are taking leave under the FMLA. Instead, the policy must state that no one can work at second jobs or moonlight at any time during their employment with the company.
Speak to Swartz Swidler
Many employees have second jobs or moonlight at side gigs to make their financial ends meet. However, some employers have blanket policies against outside employment. If you continue to moonlight at a side gig or work a second job while you are on leave from your primary job, your employer can only discipline you if you fraudulently obtained leave under the FMLA or has a uniformly-applied policy through which it prohibits outside employment for all employees. You can’t be disciplined in the absence of this type of policy for working at a second job while you are on leave. If your employer fired you after learning you were working at a second job while you were on FMLA leave, you should speak to an experienced attorney at Swartz Swidler. We can review your company’s policies and help you understand whether you might have a retaliatory discharge claim. Call us today for a free consultation at (856) 685-7420.
