What is polygamous work?

With the Canadian economy on shaky ground, many people are looking to earn extra income to meet their financial needs. This could be in the form of passive investment opportunities such as buying stocks or through the ownership and sale of real property. Typically, such business endeavours are uncontroversial and will not adversely impact a person’s job. However, things could get more complicated if an employee decides to hold two jobs simultaneously and in secret in order to earn more income. This is also known as “polygamous work” – the notion that an employee works covertly for more than one employer. The key aspect to polygamous work is that at least one of the employers does not know that the employee is employed by the other. As such, there is an element of deception in polygamous work on the part of the employee. And with the advent of remote work, it has become far easier to accomplish as the employee’s workplace does not change. However, polygamous work carries real consequences for the employe that may result in discipline, termination and even legal action from the aggrieved employer.

Employment Contract or Agreement

The starting point of every employment relationship is the employment contract. Whether written or verbal, an employment contract may specify instances in which an employee may not engage in secondary employment in the absence of the employer’s consent. These restrictions may be explicitly focused on engaging in another job during work hours. Alternatively, an employer may contractually commit the employee to refrain from being employed in any secondary employment for the duration of the employee’s employment with the employer. The enforceability of such provisions will come down to the reasonableness of the expectations set out by the parties. For instance, unless the employee is in breach of some of the points further discussed below, a sweeping prohibition on having any secondary sources of income (such as passive investment) will likely prove to be legally untenable.

Productivity at the Workplace

Employers need their workplaces to be productive to be successful. Employees who are engaged in other matters that are not work-related, such as if they spend time engaged in secondary employment or polygamous work, can cost the employer by reducing productivity. Imagine an employee having to prepare projects, answer emails and meet quotas not for one but for two employers simultaneously – this will often result in the inevitable decline of the employee’s production output. Even if the employer does not find out about the employee’s second job, productivity will surely be adversely impacted, performance compromised and the employer will eventually have a reason to terminate the employee because of a marked decline in performance.

Competition can lead to a Breach of the Employee’s Duty of Trust and Fidelity

Employees owe a duty of trust and fidelity to their employers. Employees are not allowed to compete with their employer or act against their employer’s best interest while employed. Employees who are engaged in secondary employment or polygamous work with a competitor are subject to being dismissed for cause once their deception is discovered. Also, employees who work for a competitor are subject to being sued for substantial damages if their employer suffers a resultant loss of revenue because of the employee’s breach of their duty of trust and fidelity.

Conflict of Interest 

Many organizations specify in their employment contracts that there can be no conflict between the employee and the employer’s interests. If an employee is employed in a secondary job with another employer and the employee’s secondary employment conflicts with the employer’s interests, then the employee may be subject to a dismissal with cause if the conflict of interest is material. For instance, if the employer’s primary employer is a supplier of goods and the employee’s secondary employer is the goods’ purchaser, the employee will be in a conflict of interest. In such a case, both companies clearly hold commercially conflicting positions: one company’s interest is to sell its goods at the highest price possible, while the other’s goal is to purchase it at the lowest price possible. An employee employed by both employers will risk being dismissed for cause by both companies.

The Employer’s Reputational Concerns

Employers are allowed to terminate employees for conduct that occurs outside of the workplace. This means that employers are free to terminate employees for conduct that impacts their business reputation. For instance, if an employee works for another company that may have a material impact on the employer’s brand, then even in the absence of any contractual restrictions or productivity concerns, the employer may be free to terminate the employee for cause on that basis. Reputational concerns may also overlap with conflict-of-interest considerations that may give further ground to terminating the employee with cause. For further information on when an employer may terminate an employee based on “off duty” conduct we invite you to read our blog titled “Fired for Social Medial Posts in Canada? Know Your Rights”.

Breach of Trust

Trust is a fundamental term of the employment relationship. A breach of trust serves as a sufficient ground for dismissal with cause at common law. Having a secondary job or participating in polygamous work may or may not result in a breach of trust between the employer and the employee depending on the circumstances of the case, the specific context of the employment relationship and the severity of the breach. For instance, breaching a restrictive covenant or acting in conflict with the employer’s interests may result in a breach of trust even if the employer does not suffer any tangible or quantifiable losses. An employee may also breach trust by disclosing the employer’s confidential information to the other employer even if the two organizations operate in completely different industries.

Polygamous Work Carries Substantial Risk of Termination

Although the temptation to earn an extra dollar is great, working two jobs in secret may result in myriad problems for the employee. Productivity is a key reason why employers do not like employees working in two jobs. However, other considerations include loss of competitive advantage, inadvertent breaches of confidential information, reputational harm, and conflicting interests and loyalties. Employees should also remember that when working multiple jobs, they risk acting in breach of their obligations in relation to every employer they simultaneously work for. Employers have feelings also and employees should think twice before “cheating” on them!