Many employers want their employees to stay focused on their job duties and not to start side businesses or moonlight on nights and weekends. Some employers even go so far as to publish policies prohibiting employees from working a second job, even if that job does not interfere with their duties to the primary employer. However, this sort of policy is unlawful in the District of Columbia.

Unlike most jurisdictions, the District of Columbia’s restrictions on non-compete provisions do not apply only in a post-employment setting – they also apply during employment. The District defines a “non-compete provision” as any agreement or policy that prohibits an employee “from performing work for another for pay or from operating the employee’s own business.” This means that an employer generally cannot prohibit an employee from working a second job.

The law has a few exceptions. An employer can prohibit a second job or side business where it would:

• Result in the employee’s disclosure or use of confidential or proprietary employer information;
• Conflict with the employer’s, industry’s, or profession’s established rules regarding conflicts of interest;
• Constitute a conflict of commitment if the employee is employed by a higher education institution; or
• Impair the employer’s ability to comply with District or federal laws or regulations, a contract, or a grant agreement.

Even where one of these exceptions applies, the employer cannot prohibit moonlighting unless it has published a written policy explaining that moonlighting is prohibited. Any such policy should carefully state that moonlighting is prohibited where it creates a conflict of interest or would result in the use or disclosure of confidential employer information.