There are several reasons why an employee might decide to embark on a new employment relationship while still entertaining one with the first employer. However, the Italian laws only allow such a decision under certain conditions. The so-called moonlighting phenomenon has a particular translation in the Italian jurisdiction. The moonlighting phenomenon has an Anglo-Saxon origin, but it also landed in the United States and is progressively spreading globally. It represents a situation where an employee, already employed by one employer, starts to carry out extra working activities for a third subject without making the initial employer aware of such conduct. Employees who tend to seek a second occupation do it because they need an additional source of income; their number has lately increased due to the current state of the world economy. On the other hand, employers – where informed – are likely to discourage such decisions, not only because of the critical issues that may arise concerning the confidentiality of the information employees become aware of by their relationship but also regarding potential conflicts of interest, as well as the likely reduction in the work productivity on the involved employee’s part. In the mentioned countries, no regulations are dedicated to preventing employees from embarking on further work paths besides those already established. Therefore, technically speaking, this practice can be considered lawful. However – and this would be the only regulated source of such a provision between the parties – the employer and the involved employee may agree on a specific clause within the employment contract expressly forbidding the moonlighting practice, thus excluding contractually any such possibility for workers executing such contracts and justifying their dismissal in case of its violation. In Italy, moonlighting is not explicitly regulated, although it shares many features with the regulation dictated by Section 2105 of our civil code, albeit with some relevant differences. Such a norm provides that a third subject can simultaneously employ employees who are already working for an employer, provided that the companies headed by the two employers are not in competition with each other, nor can the combination of these services lead to a violation of the Italian regulations on daily rest (under Legislative Decree no. 66/2003), which is one of the overriding mandatory principles of our country’s system. Compared with the UK management of the phenomenon at issue, its Italian counterpart is included in a more general loyalty obligation, provided for directly by a rule of the Civil Code, which entails its necessary application by all contracts signed under national law. Therefore, all employment relationships thus established are already covered by such a provision, making it unnecessary to expressly provide a specific clause to prevent this kind of scenario.
2024 - Morri Rossetti
