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Employee Takes FMLA Leave & Takes Second Job - What Now?


Recently, a regular reader of the blog brought up a situation where an employee uses leave under the Family Medical Leave Act (“FMLA”) and subsequently takes a second job.  The question arose is this lawful?

Before we get into a more nuanced discussion, I remind readers that this blog is not intended to serve as legal advice.  If you are in a situation where you need a legal opinion or counsel, I suggest you confer with your preferred labor & employment law related counsel.

With that being said, let us take a step back and look at the language of the FMLA.  Section 825.216(e) of the FMLA stipulates that “If an employer has a uniformly-applied policy governing outside or supplemental employment, such a policy may continue to apply to an employee while on FMLA leave.  An employer which does not have such a policy may not deny benefits to which an employee is entitled under FMLA on the basis the FMLA leave was fraudulently obtained as in paragraph (d) of this section.”

So take a situation where an employees goes on FMLA leave and then moonlights at a second position at the same time.  For the original employer, if there is a policy in place that prohibits this second job, the employee on FMLA leave could potentially be terminated for taking the supplemental job.  Of course, as Section 825.216(e) notes, this policy must be uniformly applied to all employees.  Selectivity choosing which employees to enforce this policy against could potentially void it if challenged.  However, if the employer has no such policy in place, there likely are insufficient grounds to terminate the employee for taking a second job while on FMLA leave.

What about the second employer though; the employer that hired the employee on FMLA leave?  I think based upon the language of Section 825.216(e), the same analysis would apply.  If the second employer had a policy in place against moonlighting, the FMLA employee likely could potentially be terminated when the first job (in which the employees was on FMLA leave from) became known.  As noted above, this policy would need to be uniformly applied or it would potentially be void if challenged.  Similar to the above, again, if the second employer had no prohibition against moonlighting, there likely would be insufficient grounds to terminate the employee for having a second job while on FMLA leave.

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