General Question

jackfright's avatar

What should i do with my colleague?

Asked by jackfright (1180points) July 17th, 2010

I recently found out about a colleague/employee’s moonlighting (through another colleague). He’s a full time photographer*.

More specifically, that he uses models our company has hired to take his own shoots using our company’s studios. He advertises them in his own portfolio as his own company, with no mention of us. I wouldn’t be surprised if he used our company’s equipment either.

*As part of our employment contract full time staff cannot moonlight. Part time staff on the other hand, can.

Am I thinking about firing him because i’ve warned him about moonlighting before, and offered him a part-time contract. He chose the full-time contract because it paid better.

Am I overreacting or would firing him be justified?

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26 Answers

Seaofclouds's avatar

It it’s part of your contract, and you know for sure he is moolighting, then fire him if that’s what you want to do. If you value his work and want to keep him around, give him the choice of cutting to part time or being fired.

Neizvestnaya's avatar

If it were my employee and I’d given them notice once before then it would be a firing right now. I would also think this would disqualify them from severance pay, continued benefits and any association with your company.

josie's avatar

A contract is a contract. If you are being “harmed” by the employee’s actions, fire him on the spot. If it is merely annoying tell him to “stop and nothing more will come of it”. If he does not stop, or gives you shit, fire him.

UScitizen's avatar

You need to consult an attorney well versed in intellectual property law. You (your company) may have an ownership interest in the product produced using your facilities and equipment.

ETpro's avatar

There’s not much point in having an employment contract if you don’t enforce it. But take @UScitizen‘s advice and have your contract and the situation reviewed by an attorney competent in intellectual property law. A guy that will do something that dishonest will likely also look for a way to sue you for firing him.

Jeruba's avatar

I don’t see why you’re hesitating.

ragingloli's avatar

Tell him that you have found out what he does and give him a disciplinary letter telling him that he has to stop. If he does not, or if he does it again, terminate his employment.

marinelife's avatar

If he is violating his contract by doing something you told him about before, he should be fired.

Rufus_T_Firefly's avatar

Yes. You’re overreacting. If the quality of his work hasn’t suffered and the company hasn’t suffered, why would you begrudge one of your employees the opportunity to make a little money on the side?

Jeruba's avatar

@Rufus_T_Firefly, it seems to me that you are arguing against the policy itself rather than the application of the policy. Given the policy, why would it be wrong to enforce it? If the policy is wrong, it should be changed; but presumably it was put in place for a reason, such as protecting the interests of the employer. Most employers are quite reasonably opposed to subsidizing the competition.

Rufus_T_Firefly's avatar

@Jeruba – You may be different, but I’d never willingly go to work for someone who would restrict what I can earn in any way, policy or not. I’d still say he’s overreacting. Most policies benefit ONLY the company. That’s not always a good thing.

anartist's avatar

If you value his work, tell him he has to stop, go part time, or quit. If he does not pick the second or third choice., tell him you are filing an official reprimand and will can him next time it happens.
If he is not that valued and expendable, fire him on the spot.

Carly's avatar

Chances are that he knows he’s breaking the rules. Hire a photographer that will really respect your companies wishes; there are so many unemployed people out there right now who would be more than willing to not moonlight if they had a full-time job.

perspicacious's avatar

You know what is in the contract and whether or not firing him is the right thing to do based on it. Not sure why you are asking us what to do.

Jeruba's avatar

@Rufus_T_Firefly, in that case you would not have signed the contract, correct? If you had signed it, wouldn’t you consider yourself bound by it?

Rufus_T_Firefly's avatar

@Jeruba – True, I would not have signed such an agreement. However, like a non-compete agreement, such agreements aren’t worth the paper they’re written on if there isn’t some kind of monetary remuneration in exchange for the employee’s signature/commitment and simply ‘keeping one’s job’ isn’t considered a monetary remuneration, it’s a type of threat.

ETpro's avatar

@Rufus_T_Firefly The guy is doing shoots with the same models the OP has hired, and using the OPs studio off hours to do it so he can then compete directly with his employer. If that’s not egregious behavior, I don’t know what is. I would fire any worker of mine that I found using my resoources that I invested in and paid for to try to steal business away from me.

Rufus_T_Firefly's avatar

@ETpro – I didn’t say it wasn’t egregious and I’d fire him too, but not without getting some more information. My minor point was that non-compete agreements aren’t always a legally binding contract. If a non-compete agreement is wholly one-sided with no monetary remuneration or appropriate compensation going to the signer, it could be useless to try and enforce it in court.

My main point was that given the story we’ve been told, I’m not convinced that superiors within such a high-profile company could have absolutely NO idea that an employee is regularly using critical company facilities, equipment and model assets without already having his superiors’ prior permission. It all just seems a little odd to me. I think there’s probably more to this story than the questioner is aware of.

ETpro's avatar

@Rufus_T_Firefly A non-compete clause kicks in after an individual is terminated. This is completely different. This individual is competing while employed by the company, and misappropriating their facilities and resources to do so. I and others mentioned that it would be good to pass it by an intellectual property attorney and one familiar with employment contracts, but it sure seems clear cut to me.

Rufus_T_Firefly's avatar

@ETpro – I suppose so, if you’re going to accept one man’s supposition as the basis for a judgment. The guy deserves a chance to defend himself against these accusations and I still think there‚Äôs probably a lot more to this story than the questioner has told us or is aware of.

ETpro's avatar

@Rufus_T_Firefly Since the OP owns the company, I took him at his word. But you are right it’s a good idea to have a disinterested third party review the facts as opposed to suspicions in the matter. Again that’s why I suggested @jackfright run it by an attorney who will want to know what parts are provable in court and what are suspicions or rumors.

jackfright's avatar

@Rufus_T_Firefly i can understand your perspective, which is why i wanted to see what the general consensus was.

We did not always have this policy. And we only enacted this policy after learning the lesson the hard way with a previous member of staff (this was a good decade back). But still, this policy was already in place well before we employed him.

Since then, we brief all new potential staff of the two options; full time or part time. Some opt for part time and they moon light, we dont have a problem with that, sometimes we even support or participate in it (i.e. attending a conference where one of our part timers is speaking or something else). No one has a problem with this. Full timers get better packages in exchange.

Only thing i hate more than firing people is being given a reason to. We have generally kept good relationships with a vast majority of our ex-staff. We have 6 guys here that came back after leaving at some point in the past.

We typically have a number of core staff (full timers) who manage freelancers for projects as the need arises. In his case, this would be photography, which is why he’s responsible for the photo labs and studios. So, no, we dont just let anyone walk in and do as they please, but he isn’t just anyone.

Legally, we’re not pushing for ownership for any of the work he’s done using our property for external parties because I dont want any money from those. We’re just pushing for removal of such works for future use or display.

Rufus_T_Firefly's avatar

@jackfright – I can appreciate your position, but why do you offer part-timers the ability to ‘moonlight’ and then deny that very same option to those who’ve made a full-time commitment?

Most full-time jobs simply don’t pay enough to provide the basics of life, which is why we’re seeing more and more two-income households. After taking inflation into account, most of today’s Americans are still earning at the same level they did back in the eighties, so the decision to seek additional income is generally a no-brainer for most of us. A ‘no moonlighting’ agreement or a ‘non-compete’ agreement further restricts a person’s ability to produce income, and since it usually does so within that person’s main field of expertise, exactly how else is an employee supposed to get ahead and make ends meet? I can understand firing an employee if they have stolen from or damaged the company’s image or if they have somehow deprived the company of any income due. What I can’t understand is why a company would purposefully restrict someone’s ability to earn a living in their chosen field, often for years afterward.

Once again, I understand your dilemma. Maybe you should sit down with him, one on one, tell him your own thoughts and allow him to express his before making a rash clinical decision based on policy alone. If he is truly an asset to your company, you may be glad you did and he should appreciate the candor.

jackfright's avatar

@Rufus_T_Firefly there are 2 issues here; One of which i could and have in the past pretended not to know about when i knew a colleague who’s going through a rough patch. They were discreet about it, and none of the other colleagues knew. I can sympathize with that so long as they personally promised it wasn’t something they were planning to do constantly. Especially with the guys who’ve been with me for a long time.

This particular situation is new to me because unlike the discreet moonlighters, this guy used company property. If he had just done bits and pieces of freelance photography work with his own contacts and resources, i could’ve more easily brushed it aside.

Also keep in mind that one of your points may be misplaced here. This isn’t an issue of non-compete. We have non-compete clauses, but use that more in the software development department. So this really isn’t a problem in this area (photography) and I’m not trying to prevent him from plying his trade. But i’m not sure if you’ve noticed the fact that he had been using company property is the main focus.

wundayatta's avatar

@jackfright Is this colleague hurting your company in any way? Is the colleague shirking in their work? Does the colleague do good work?

You might consider charging him for the use of company equipment and models. You could dock his pay. Is it an employment-at-will situation? He can quit if he wants, or pay a fair rate for use of company facilities. Or you might change the policy and then charge him going forward if he does the same thing.

I wouldn’t fire him just on the basis that you need to enforce the rule. I’d fire him if the rule makes sense for your business model. If it doesn’t, I’d amend the rule to one that is better for your business model.

softone's avatar

Sounds parasitic. If you have hard evidence that he’s broken contract, fire him.

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