I terminated an employee because he was working on his own projects on company time. Those projects he worked on were fed to him from an architect our firm works with often.
It seems the architect and the former employee are also working together on projects, possibly design build, all outside of the company.
Did the architect do anything wrong? I know the architect certainly works for his clients but to work outside of our company with an employee?
It's impossible to say whether this architect was acting unethically based on the details you've given us. Not that you should reveal more. It's not anyone's business and you could get yourself in trouble if you discuss it on an open forum.
AIA member architects are required to abide by a general code of business ethics. There may have been some conflict of interest, for example, was the architect working with the former employee and getting a kickback without the client's knowledge? Were the former employee and the architect colluding to keep profit from flowing to you? On the other hand, were both parties trying to benefit the client's interests by doing this work, not their own interests, which would be a different set of ethics?
This could be discussed endlessly but the most important things to acknowledge are 1. it's not uncommon and 2. any legal recourse likely won't benefit anyone but lawyers. You're best off just letting it go. Sorry.
The architect may not have known the guy was moonlighting on your time. But it's ethically dubious behavior at best. Poaching is common practice. Not much you can do about the architect except keep your eyes open and don't ever recommend him to a client.
You may very well have a legitimate claim for damages against the employee if you were paying him for time he spent working for someone else. Did he use company equipment or take materials from one of your projects? Whether or not to pursue it depends on some financial calculations as well as some emotional ones. Probably worth a discussion with a lawyer - not that you should pursue an action, just that you should understand all the various aspects and possibilities.
Then there's the matter of addressing the situation with the rest of your staff.
Those projects he worked on were fed to him from an architect our firm works with often.
An intentional subterfuge created by the architect. Since I doubt any legal action would pay, I'd visit the architect personally and ask WTF. Last project with that architect.
Sorry, but I think the onus is on the original poster. He had an employee who was so bored at work that they found something to do. now He dosent't like what they did. Bully for him.
"Nothing wrong with moonlighting on your own time"
I'd also list a lot more caveats. On your own equipment, on your own titleblocks, with your own details and everything else having to do with that work being produced entirely outside the firm or using any firm standard details or blocks.
And you do not tell anyone or ask for their input. <== did a lawsuit on one like that. A firm PM and others made a huge mistake of often reviewing and critiquing the design; A young architect was designing a house on the side. That's all it took to show that the firm acted in a role of a architect on that project which ended up with issues; the buyer sued, the attorneys discovered the abundant redlines including 'borrowed' standard detail sheets, and the firm got hauled into the mess.. Whether the firm got paid for it or not has nothing to do with it. The question comes down to; Did this employee work under the guidance of the firm? Yes he did and here's the redlines and testimony showing this... The only exceptions are the 'good Samaritan' type laws...
Sorry, but I think the onus is on the original poster. He had an employee who was so bored at work that they found something to do. now He dosent't like what they did. Bully for him.
Exactly. Really, the OP probably needs an a$$ kicking. Providing professional jobs for people -- what the hell was he thinking?
Every employee handbook I've seen has included strict prohibitions against moonlighting - on company time or not. I thought this was common - in part for the liability as mightaa explained.
I knew of a senior-level hire who got fired from my office for just this reason. He had his own firm prior to being hired, but promised to finish all outside work before he started. When the partners found out he was still doing his own projects (on his own time) he was out.
FL Wright got fired for moonlighting at Sullivan's office didn't he?
^ I think that's pretty much typical handbook boilerplate.
The OP's employee was double-dipping, which is wrong in any case and I think the OP did the right thing in letting him go.
I think that if a person moonlights by doing the same type of projects that the day job firm does, that's creating competition for your employee, so that's no good -- even off the clock.
That said, there are other examples which get harder to answer -- say a guy that works for a firm that does strictly healthcare, or K-12, or industrial or whatever that wants to design SF houses after hours. Is it possible to separate completely in the event of some sort of litigation? I honestly don't know. Probably not worth the risk.
At our company, we have a strict policy against moonlighting, either on company time or off of it. The reason is very simple. There is established case law where a moonlighting employee was sued by his moonlight client, and the firm he worked for was attached and brought into the lawsuit. All it takes is a phone record of a call related to the moonlight project, or an email from the office location, and they can go after the firm.
I can't help but enjoy the hypocrisy of firms banning (or at least attempting to ban) moonlighting by employees when the founders of the firm more than likely got started by moonlighting themselves.
Geezertect, (laughing), well you're right, I did. OK for a guy that doesn't have much to put himself at risk, but when you climb over to the other side of the fence you just can’t absorb the risk -not about holding a guy back.
The OP asked if he was “wrong” - maybe not, but this idea today of “1-strike you’re-out” doesn't cut it with me - just ruining people for making 1 mistake is corrosive and needs to stop.
If you have an office policy that states that employees must not moonlight, and that policy was made known to the employee, and they moonlight anyway, then you should not feel bad about letting them go. Whether you want to give them a second chance? Your call.
I can't help but enjoy the hypocrisy of firms banning (or at least attempting to ban) moonlighting by employees when the founders of the firm more than likely got started by moonlighting themselves.
As a business owner, that sort of doing your friends and family good type moonlighting doesn't bug me. I sort of assume you'll do that anyway. So a slightly different perception from the way a business owner might view this as a industry problem.
The moonlighters often sell us really short as a profession. You might be ok earning the equivalent of $30/hr on a moonlight job, but that person tells 40 more and it makes $120/hr look like their getting bent over (and that's f'n cheap). And the whole industry now has to compete with the guy working out of his basement in the evenings...
Here, some math.. 2080 work hours times $120/hr (doesn't even account for no one being 100% billable) = $250k a year. Normal overhead rate of 3 (something you don't have), so divide by 3. That means a salary of $83k a year; The most I can possibly pay you IF I can bill you 100% (which I can't... most run 80%, but I'll let that go for sake of this rant).
If I do half that hourly rate ($60/hr), it's half that salary or $41.6k a year... that's what I can afford to pay you to just be twice the cost of your average moonlighter. No wonder you need that second job. So yes, for you spending 10 hours a week and getting another $1200 a month sounds great... but for the industry? I'm in competition with that... so I can't pay you what you are really worth when you've sold yourself for so little. And the only reason you can do it so cheap is because you have a full time job I give you. So I find out... you are asked to leave.
You are a grown up, so maybe you'll discover even getting your own shingle on the door and charging $60/hr really doesn't work like you think and haul in a nice six digit income. I actually kind of love the irony... you'll not have the office, insurance, etc. to compete with the real firms, AND be competing directly with moonlighters so you'll be twice as expensive when you start out. Then you too will start bemoaning that scourge when it dawns on you that your f'n realtor just made more than you saying "just think of the potential!" and has a GED HS diploma equivalent. You'll start wondering why the hell you, with 6 years of college and 3-4 years interning can't charge enough to get paid six digits (with a 3 OH rate you need to bill $300k minimum just for yourself to hit six digits)... Irony indeed.
That's really why your boss appears to be a hypocrite... When started, he probably had to compete and found he couldn't without a real job (or spouse) to support him. So his view on all of it changed.
How is moonlighting, while at your regular job, not 'wrong' from a professional standpoint? Maybe if it's a design competition of some sort and you have nothing else to do - but a real project, for pay? That's just bad form.
Moonlighting itself isn't unethical - but plenty of firms have a zero tolerance policy of moonlighting of any kind and explain this when you start. Honestly, it's a serious potential legal issue for your firm if your employees are doing work on the side - especially if they're doing it on the firm's time with the firm's equipment. Talk to your insurance provider.
Carrera and mightyaa: I understand completely why an employer wouldn't like moonlighters from a business standpoint. I just get irritated when they couch their self interest in moralistic terms.
As for moonlighters driving down compensation industry wide, that is both a symptom and a cause of a weak profession. Chicken and egg debate. Fundamentally, there are simply too many pigs at the trough. All we as practitioners can do is spread the word to would-be archies about the dismal prospects of being an architect. Beyond that, what will be will be. God knows the schools and the AIA aren't going to do anything.
Had a client that worked since high school for an electrical supply company (heavy stuff for utility company’s) and at night over the years he invented/created electrical control systems bringing utility company’s into the digital age – all related to what his employer sold – all done in the basement of his little 850 S.F. home….got patents on stuff and became a multimillionaire. Where would this country be without moonlighters – but what we do is different and very litigious – moonlighting ruined by attorney’s.
Our office acknowledges that some staff work on the side granted it's not on company time. Perhaps this is different since we do not provide residential services as a practice. Where they do get irked is when some designers use their business cards to snag discounts and samples from reps for their own side-work. Those reps think they are doing a favour for the office with hopes of receiving consideration for the next big multi-million project when in fact, the designer just wanted cheap carpet tile for their brother-in-laws' toolshed/mancave conversion... or something like that.
at night over the years he invented/created electrical control systems bringing utility company’s into the digital age – all related to what his employer sold – all done in the basement of his little 850 S.F. home….got patents on stuff and became a multimillionaire
He's lucky the company didn't try to sue him for the patent rights since he was using experience and insights gleaned from his job. That' s been known to happen too. A subject for a different post.
"Our office acknowledges that some staff work on the side granted it's not on company time. Perhaps this is different since we do not provide residential services as a practice."
The firm I'm with does zero residential work as well. Regarding moonlightling, I've seen some pretty bad employee behavior, and I suppose I've heard all the same or similar legal horror stories as the next person on this forum.
I'm constantly asked to do residential work by friends. I'd love to do some of them, but I have no desire to compromise the firm I'm with in any way. Even if a firm's partners are agreeable to an employee's "non-competing" moonlighting, my question is: Can this be done in a way that is legally separate from the firm?
"Can this be done in a way that is legally separate from the firm?"
I'm not sure on this but I was explicit with my clients on the little extra work I've done outside of my office that my employer was in no way connected to the project. Not a fool proof strategy, but maybe if you choose your projects correctly and avoid cowboy clients, there is less risk?
I'm still leery about extracurricular activities for the reasons listed above and I try and refrain from them. The little bit of extra cash is probably not worth the potential headache.
Geezertect - My dad did something similar. He was an engineer for a big utility and ran their electrical substation operations…when he saw the digital age coming he tinkered around in the basement and created/invented digital control systems to control the substations and when he knew it could fly he consulted an attorney, then went to the company and told them what he “could” invent, then told them if they would endorse it he would give them their “copy” for free, but would own it otherwise….the utility grabbed the proposal…..Dad sold it to Siemens before he died and it’s the Gold-Standard for those types of controls today. So yes one needs to take-care with all moonlighting things….
so it sort of seems like the general lesson is that if you're an employee, you might want to take an extra project on the side. this might be in part because you need the extra money or experience your employer is not willing or able to provide, so it's in the best interest of the employee to moonlight.
if you're an employer, people shouldn't moonlight because it's not in the best interest of the employer, due to the possible risk.
if we didn't think only of ourselves so much, maybe we could find a compromise in the middle where the employee's and employer's needs are both met? if the employer keeps thinking the world revolves around them, then they're essentially forcing the employee to act against their interest if the situation calls for it. as far as i can tell, that has a lot to do with why it's hard to find 'qualified' people and turnover is high in the industry. building relationships is so important to being a successful architect, yet managing partners seem to try so hard to tear down the relationships in their own offices.
I wonder, does moonlighting really impact chargeable rates that much? I assume that most moonlighters are doing residential or very small commercial work and that it is probably for either a friend or for someone who can't pay the $150 per hour that a bigger project might command.
I also like to think that the customer knows they are getting less than the highest professional service.
There are a number of "moonlighters" in my office, one even works with the spouse of a principle. My understanding is that so long as you don't touch the firm's clients/project type or use company resources it's fine.
I'm constantly asked to do residential work by friends. I'd love to do some of them, but I have no desire to compromise the firm I'm with in any way. Even if a firm's partners are agreeable to an employee's "non-competing" moonlighting, my question is: Can this be done in a way that is legally separate from the firm?
Being the 'architect they know', of coarse friends and family will make request. As an employer, that stuff doesn't bother me in the slightest. Just keep it out of the office, and I'm actually nice enough that if approached, I'll let you run it in the office using my stuff, and peer review. You run the whole thing at whatever fee you want to charge them. I will allow myself to be exposed a bit. Still your contract, done in off-hours, you keep the money.
Why? Part of it is I want to see how well you can manage this stuff all on your own. It's a good way to help spot those that can handle difficult projects; And family and friends ARE the most difficult clients because they want 'everything', feel free to be confrontational with you, and expect it for almost nothing. The other is that your friends and family aren't likely to sue simply because with you being the name on that contract, they have to sue you directly to get to me. I know there are greedy horrible people out there, but I also trust you enough to know who they are and you wouldn't work for someone taking advantage of you like that.
The other kind of moonlight project I've got no problem with: Charity. I've brought in, and others here, weird little projects to just help someone or some organization out. I'll take on full liability if you want to charge pro-bono or work it for free.
The type of moonlighting I don't tolerate is the 'for profit' sort. Favors, goodwill, etc. you do for fun, to help out, or just for something cool to work on, I don't have an issue with at all and will assume a lot more liability than you'd probably expect.
^ Well, you sound like a good boss. Possibly great. Any openings...? ;-)
Of course, some friends just need some minimal help, and most are never really going to ever build anything! You know the drill. However, I have one friend of a friend who wants to build a house on 10 wooded, hilly acres -- and from the magazine images he's shown, it's very interesting to me. There would be a decent fee involved for me -- i would very likely profit from it.
How would something like that strike you if I were an employee?
And um... to clarify how this legal stuff really works. Most lawsuits I've worked on aren't frivolous at all; Millions in damages. There is a reason for that. Basically, you got to screw up bad enough that the damages will exceed legal cost to make it worth really pursuing. Attorneys and trials are expensive... and I hate to say this, but my insurance company footing the bill for the defense has much deeper pockets than your typical client who'd hire a moonlighter or even my firm. That's why they name the firm and the insurance company knows this. They are essentially defending their own pockets; Deep pockets worth defending means very good legal representation.
A very common tactic is to drag the process out.... that increases your legal fees considerably because 'time is money'; my average lawsuit takes 2-3 years to work through the system. They'll bankrupt you for trying to win a few thousand. Hell, my average billing just to perform a investigation on a single family and write a report will be over $10k... that doubles with disclosure and depositions... triples if I have to go to court. How bad do they want to sue you? I've had a couple cases where my legal billings for it exceed $400k and sucked 5 years off my life.
Anyone can sue.... but they have a shot at winning against you, Mr. Moonlighter who can't afford good legal representation. But me, backed by a insurance company and teams of legal sharks?
I pay my $10k deductible, and then they'll be facing the real sharks who specialize and litigate in construction defect law and teams of experts. That family attorney the plaintiff hired is out of his league and will get schooled fast by these attorneys who know this industry and can ask the right questions and get the right experts involved. The specialized attorneys won't take on nickel and dime cases... they want the big lawsuits.
So... that lowers the risk considerably even if an employee gets caught moonlighting. It's already a hard argument to link the firm's direct involvement... but to do that when you barely understand the profession?? Most attorneys recognize a tough fight when they see it... only a minority would try to tackle this without some real compelling evidence. Sure, they might write the letter trying to get you to settle, but when push comes to shove, they'll cave knowing how weak their side is.
I have a $10k deductible. So, when someone threatens, that's essentially the card I hold. Most firms settle before it gets there. My basic choice is whether I want to pay my corp attorney to fire back a response (about $2k) or settle ($2k is easy) or open Pandora's box and sick the insurance company on that plaintiff with a weak case. And to be honest, if I had to settle, I'd renegotiate that employee's salary IF I still wanted them to cover the problem. If it goes to actually being sued, I've got no choice but to fire them.
Basically the way to protect yourself; Nothing in writing showing a direct connection. It should also not be common knowledge so and so is moonlighting AND that it is a firing offense. Material and intellectual theft from the company is not a liability to the firm and really hard to prove something when everything points in another direction. My attorney's will show what a redlined set looks like, walk through what peer review and oversight is, etc.. the defense won't have anything like that. My side will prove the moonlighter had access and the now apparent financial motive to steal title blocks, details, time on equipment, etc. Most plaintiff's don't have anything more than this person being an employee. I have always wondered if those insurance sharks also sue the moonlighter for legal fee's. I know typically the 'loser' in the case pays reasonable legal fees for everyone involved.
So basically, who's taking the biggest risk of them all is the moonlighter. He's risking his job, and opening himself up to liability from both the employer and the client without having some sort of coverage.
However, I have one friend of a friend who wants to build a house on 10 wooded, hilly acres -- and from the magazine images he's shown, it's very interesting to me. There would be a decent fee involved for me -- i would very likely profit from it.
How would something like that strike you if I were an employee?
Get's fuzzy. Since I don't do residential (so it's a non-competitor market), and it's a friend, I'd probably allow it or work out some sort of deal with you. Probably more like you do it on off hours, and making sure you know you do not use anything or give any reason for that client to believe the firm is involved in any way.
I had an employee once who's husband was a stonemason/carpenter. She did all the drafting and architectural stuff for him (like code studies, exiting plans, interiors). His specialty was more those 'interior monuments' like bars, fountains, rock walls and lobby features. She was quite upfront about it before I hired her. Since he was a licensed corporation, and was all set up and insured... we just set some ground rules. On her own time, using her own equipment from home. She was doing some pretty cool stuff and would bring in photos.
Another I had was married to a self-employed landscape architect. She too did all the architectural stuff for him. Same deal.
If either of them had something too big to tackle, they'd bring that work into the office essentially hiring us. So I've done football fields, baseball dugouts from that landscape architect. A restaurant remodel, and a couple TI from that stone mason. Basically I help them out, they help me out. We sent work to their spouses too...
There's also another approach I've used. With my clients, they sometimes come to us with silly and small projects either personal or for their firm. I hate those basement or kitchen remodels.... Funny, but that is the scenario behind a half dozen houses and forty or so home remodel projects.
These projects are too small to run profitably in-house without throwing out a ridiculous fee and risk the anger of this important client. So, instead of taking a hit, I would approach an employee.. I'd say "how'd you like to earn a bit more money?" and work out a deal where they do the majority of it on off hours on their own time and I'd cut them a bonus check for the service. They'd get to set their own price and negotiate with me; the IRS is happy, the client is happy (and I'm still the only architect they know and trust) and the project is covered under full insurance..
My father ran his studio the same way. He also passed on clients he didn't want to work with to us - some of them because they didn't pass the smell test.
Of course they were never particularly thrilled NOT to get Norman ... so it was often a bust.
Miles, hell of a thing running a small practice…they always want “you”. Took me decades to break that but even then I had to go along symbolically. I wasn’t that big, 64, but when you sold the order it was that face they still expected to be “involved”. I heard from an old sage once say to a client….”sorry I can’t be there, but it isn’t that this isn’t important, but need to attend to something more complicated”. Used it often.
No emails get answered outside of lunch hour, while I am outside of the office. No calls get answered in the office or during office hours. No research is done in the office. No drawings from the office are ever used as reference: I resolve everything myself. I don't even keep office files in my computer. I have intentionally made my drawing format as different as possible as that of where I work while still keeping it easily understandable.
I have created an LLC., and all expenses go through it. I keep the LLC public in my social media profiles. I have nothing to hide and if my employer wants to engage me in that sort of conversation, they're welcomed to. I've brought enough big clients to my boss' firm.
I charge as much as project architect would elsewhere (I had a client once tell me she expected to pay 80 dollars an hour for my services - I told her to go elsewhere because no one with my skill set would work for that price - she called back next day and agreed to the price with a hefty retainer fee); I know my break-even rate. I know how many hours I'd have to bill if I wanted to go off my own. I use no pirated software. I save or invest most of what I earn.
What my side clients get is fast-delivery, accuracy and a direct-line to me which is not what happens during my day-job. I don't schedule myself at work, so day-job client work is subject to the wants of the partner and how he allocates manpower; not my problem - I feign stress often, but in reality, I'm rarely ever stressed at work - Not because I don't care, but just because I've lived through a lot worse situations than a client screaming over the phone.
My day-job has a well-phrased moonlighting policy. No competition with the office. No outside work during office hours. That's it. It acknowledges the fact that most senior personnel take on outside work. It's not particularly hard to do that since I generally only take on small jobs at home. Large jobs, I actually refer to the office, and I've brought a few big hits that way.
While I never mention my work during the day, it's pretty funny how my boss has slowly come to suspect this. The "how the hell do you know that? we don't do that sort of work." (and my resume doesn't say that I've done that sort of work) is often followed by a knowing grin.
Seems like you've thought this through, null...! I particularly enjoy the "feigning stress" part.
How have you, or else anyone doing sidework, handled construction phase duties. That is, it's easy to design a house evenings and weekends and separate from the 9 - 5; however, how do you handle "emergency" questions during construction -- most of which, of course, happen during your day job hours?
Is it wrong?
I terminated an employee because he was working on his own projects on company time. Those projects he worked on were fed to him from an architect our firm works with often.
It seems the architect and the former employee are also working together on projects, possibly design build, all outside of the company.
Did the architect do anything wrong? I know the architect certainly works for his clients but to work outside of our company with an employee?
nothing wrong with moonlighting
there's definitely something wrong about working on non-company projects on company time
as for whether termination was appropriate?
only you really know
It's a very grey area.
It's impossible to say whether this architect was acting unethically based on the details you've given us. Not that you should reveal more. It's not anyone's business and you could get yourself in trouble if you discuss it on an open forum.
AIA member architects are required to abide by a general code of business ethics. There may have been some conflict of interest, for example, was the architect working with the former employee and getting a kickback without the client's knowledge? Were the former employee and the architect colluding to keep profit from flowing to you? On the other hand, were both parties trying to benefit the client's interests by doing this work, not their own interests, which would be a different set of ethics?
This could be discussed endlessly but the most important things to acknowledge are 1. it's not uncommon and 2. any legal recourse likely won't benefit anyone but lawyers. You're best off just letting it go. Sorry.
Nothing wrong with moonlighting on your own time.
The architect may not have known the guy was moonlighting on your time. But it's ethically dubious behavior at best. Poaching is common practice. Not much you can do about the architect except keep your eyes open and don't ever recommend him to a client.
You may very well have a legitimate claim for damages against the employee if you were paying him for time he spent working for someone else. Did he use company equipment or take materials from one of your projects? Whether or not to pursue it depends on some financial calculations as well as some emotional ones. Probably worth a discussion with a lawyer - not that you should pursue an action, just that you should understand all the various aspects and possibilities.
Then there's the matter of addressing the situation with the rest of your staff.
Those projects he worked on were fed to him from an architect our firm works with often.
An intentional subterfuge created by the architect. Since I doubt any legal action would pay, I'd visit the architect personally and ask WTF. Last project with that architect.
Sorry, but I think the onus is on the original poster. He had an employee who was so bored at work that they found something to do. now He dosent't like what they did. Bully for him.
"Nothing wrong with moonlighting on your own time"
I'd also list a lot more caveats. On your own equipment, on your own titleblocks, with your own details and everything else having to do with that work being produced entirely outside the firm or using any firm standard details or blocks.
And you do not tell anyone or ask for their input. <== did a lawsuit on one like that. A firm PM and others made a huge mistake of often reviewing and critiquing the design; A young architect was designing a house on the side. That's all it took to show that the firm acted in a role of a architect on that project which ended up with issues; the buyer sued, the attorneys discovered the abundant redlines including 'borrowed' standard detail sheets, and the firm got hauled into the mess.. Whether the firm got paid for it or not has nothing to do with it. The question comes down to; Did this employee work under the guidance of the firm? Yes he did and here's the redlines and testimony showing this... The only exceptions are the 'good Samaritan' type laws...
Sorry, but I think the onus is on the original poster. He had an employee who was so bored at work that they found something to do. now He dosent't like what they did. Bully for him.
Exactly. Really, the OP probably needs an a$$ kicking. Providing professional jobs for people -- what the hell was he thinking?
Every employee handbook I've seen has included strict prohibitions against moonlighting - on company time or not. I thought this was common - in part for the liability as mightaa explained.
I knew of a senior-level hire who got fired from my office for just this reason. He had his own firm prior to being hired, but promised to finish all outside work before he started. When the partners found out he was still doing his own projects (on his own time) he was out.
FL Wright got fired for moonlighting at Sullivan's office didn't he?
^ I think that's pretty much typical handbook boilerplate.
The OP's employee was double-dipping, which is wrong in any case and I think the OP did the right thing in letting him go.
I think that if a person moonlights by doing the same type of projects that the day job firm does, that's creating competition for your employee, so that's no good -- even off the clock.
That said, there are other examples which get harder to answer -- say a guy that works for a firm that does strictly healthcare, or K-12, or industrial or whatever that wants to design SF houses after hours. Is it possible to separate completely in the event of some sort of litigation? I honestly don't know. Probably not worth the risk.
At our company, we have a strict policy against moonlighting, either on company time or off of it. The reason is very simple. There is established case law where a moonlighting employee was sued by his moonlight client, and the firm he worked for was attached and brought into the lawsuit. All it takes is a phone record of a call related to the moonlight project, or an email from the office location, and they can go after the firm.
Moonlighting puts the employing firm at jeopardy.
I can't help but enjoy the hypocrisy of firms banning (or at least attempting to ban) moonlighting by employees when the founders of the firm more than likely got started by moonlighting themselves.
Geezertect, (laughing), well you're right, I did. OK for a guy that doesn't have much to put himself at risk, but when you climb over to the other side of the fence you just can’t absorb the risk -not about holding a guy back.
The OP asked if he was “wrong” - maybe not, but this idea today of “1-strike you’re-out” doesn't cut it with me - just ruining people for making 1 mistake is corrosive and needs to stop.
If you have an office policy that states that employees must not moonlight, and that policy was made known to the employee, and they moonlight anyway, then you should not feel bad about letting them go. Whether you want to give them a second chance? Your call.
Mini rant incoming
I can't help but enjoy the hypocrisy of firms banning (or at least attempting to ban) moonlighting by employees when the founders of the firm more than likely got started by moonlighting themselves.
As a business owner, that sort of doing your friends and family good type moonlighting doesn't bug me. I sort of assume you'll do that anyway. So a slightly different perception from the way a business owner might view this as a industry problem.
The moonlighters often sell us really short as a profession. You might be ok earning the equivalent of $30/hr on a moonlight job, but that person tells 40 more and it makes $120/hr look like their getting bent over (and that's f'n cheap). And the whole industry now has to compete with the guy working out of his basement in the evenings...
Here, some math.. 2080 work hours times $120/hr (doesn't even account for no one being 100% billable) = $250k a year. Normal overhead rate of 3 (something you don't have), so divide by 3. That means a salary of $83k a year; The most I can possibly pay you IF I can bill you 100% (which I can't... most run 80%, but I'll let that go for sake of this rant).
If I do half that hourly rate ($60/hr), it's half that salary or $41.6k a year... that's what I can afford to pay you to just be twice the cost of your average moonlighter. No wonder you need that second job. So yes, for you spending 10 hours a week and getting another $1200 a month sounds great... but for the industry? I'm in competition with that... so I can't pay you what you are really worth when you've sold yourself for so little. And the only reason you can do it so cheap is because you have a full time job I give you. So I find out... you are asked to leave.
You are a grown up, so maybe you'll discover even getting your own shingle on the door and charging $60/hr really doesn't work like you think and haul in a nice six digit income. I actually kind of love the irony... you'll not have the office, insurance, etc. to compete with the real firms, AND be competing directly with moonlighters so you'll be twice as expensive when you start out. Then you too will start bemoaning that scourge when it dawns on you that your f'n realtor just made more than you saying "just think of the potential!" and has a GED HS diploma equivalent. You'll start wondering why the hell you, with 6 years of college and 3-4 years interning can't charge enough to get paid six digits (with a 3 OH rate you need to bill $300k minimum just for yourself to hit six digits)... Irony indeed.
That's really why your boss appears to be a hypocrite... When started, he probably had to compete and found he couldn't without a real job (or spouse) to support him. So his view on all of it changed.
How is moonlighting, while at your regular job, not 'wrong' from a professional standpoint? Maybe if it's a design competition of some sort and you have nothing else to do - but a real project, for pay? That's just bad form.
Moonlighting itself isn't unethical - but plenty of firms have a zero tolerance policy of moonlighting of any kind and explain this when you start. Honestly, it's a serious potential legal issue for your firm if your employees are doing work on the side - especially if they're doing it on the firm's time with the firm's equipment. Talk to your insurance provider.
Carrera and mightyaa: I understand completely why an employer wouldn't like moonlighters from a business standpoint. I just get irritated when they couch their self interest in moralistic terms.
As for moonlighters driving down compensation industry wide, that is both a symptom and a cause of a weak profession. Chicken and egg debate. Fundamentally, there are simply too many pigs at the trough. All we as practitioners can do is spread the word to would-be archies about the dismal prospects of being an architect. Beyond that, what will be will be. God knows the schools and the AIA aren't going to do anything.
Had a client that worked since high school for an electrical supply company (heavy stuff for utility company’s) and at night over the years he invented/created electrical control systems bringing utility company’s into the digital age – all related to what his employer sold – all done in the basement of his little 850 S.F. home….got patents on stuff and became a multimillionaire. Where would this country be without moonlighters – but what we do is different and very litigious – moonlighting ruined by attorney’s.
Our office acknowledges that some staff work on the side granted it's not on company time. Perhaps this is different since we do not provide residential services as a practice. Where they do get irked is when some designers use their business cards to snag discounts and samples from reps for their own side-work. Those reps think they are doing a favour for the office with hopes of receiving consideration for the next big multi-million project when in fact, the designer just wanted cheap carpet tile for their brother-in-laws' toolshed/mancave conversion... or something like that.
at night over the years he invented/created electrical control systems bringing utility company’s into the digital age – all related to what his employer sold – all done in the basement of his little 850 S.F. home….got patents on stuff and became a multimillionaire
He's lucky the company didn't try to sue him for the patent rights since he was using experience and insights gleaned from his job. That' s been known to happen too. A subject for a different post.
"Our office acknowledges that some staff work on the side granted it's not on company time. Perhaps this is different since we do not provide residential services as a practice."
The firm I'm with does zero residential work as well. Regarding moonlightling, I've seen some pretty bad employee behavior, and I suppose I've heard all the same or similar legal horror stories as the next person on this forum.
I'm constantly asked to do residential work by friends. I'd love to do some of them, but I have no desire to compromise the firm I'm with in any way. Even if a firm's partners are agreeable to an employee's "non-competing" moonlighting, my question is: Can this be done in a way that is legally separate from the firm?
"Can this be done in a way that is legally separate from the firm?"
I'm not sure on this but I was explicit with my clients on the little extra work I've done outside of my office that my employer was in no way connected to the project. Not a fool proof strategy, but maybe if you choose your projects correctly and avoid cowboy clients, there is less risk?
I'm still leery about extracurricular activities for the reasons listed above and I try and refrain from them. The little bit of extra cash is probably not worth the potential headache.
Geezertect - My dad did something similar. He was an engineer for a big utility and ran their electrical substation operations…when he saw the digital age coming he tinkered around in the basement and created/invented digital control systems to control the substations and when he knew it could fly he consulted an attorney, then went to the company and told them what he “could” invent, then told them if they would endorse it he would give them their “copy” for free, but would own it otherwise….the utility grabbed the proposal…..Dad sold it to Siemens before he died and it’s the Gold-Standard for those types of controls today. So yes one needs to take-care with all moonlighting things….
so it sort of seems like the general lesson is that if you're an employee, you might want to take an extra project on the side. this might be in part because you need the extra money or experience your employer is not willing or able to provide, so it's in the best interest of the employee to moonlight.
if you're an employer, people shouldn't moonlight because it's not in the best interest of the employer, due to the possible risk.
if we didn't think only of ourselves so much, maybe we could find a compromise in the middle where the employee's and employer's needs are both met? if the employer keeps thinking the world revolves around them, then they're essentially forcing the employee to act against their interest if the situation calls for it. as far as i can tell, that has a lot to do with why it's hard to find 'qualified' people and turnover is high in the industry. building relationships is so important to being a successful architect, yet managing partners seem to try so hard to tear down the relationships in their own offices.
Well put. Treat others as you would like to be treated.
some good points above....
I wonder, does moonlighting really impact chargeable rates that much? I assume that most moonlighters are doing residential or very small commercial work and that it is probably for either a friend or for someone who can't pay the $150 per hour that a bigger project might command.
I also like to think that the customer knows they are getting less than the highest professional service.
There are a number of "moonlighters" in my office, one even works with the spouse of a principle. My understanding is that so long as you don't touch the firm's clients/project type or use company resources it's fine.
"There are a number of "moonlighters" in my office, one even works with the spouse of a principle."
Ahem...
My understanding is that so long as you don't touch the firm's clients/project type or use company resources it's fine.
Well, it is, until it isn't...
the highest professional service
has absolutely nothing to do with firm size, cost, etc.
I'm constantly asked to do residential work by friends. I'd love to do some of them, but I have no desire to compromise the firm I'm with in any way. Even if a firm's partners are agreeable to an employee's "non-competing" moonlighting, my question is: Can this be done in a way that is legally separate from the firm?
Being the 'architect they know', of coarse friends and family will make request. As an employer, that stuff doesn't bother me in the slightest. Just keep it out of the office, and I'm actually nice enough that if approached, I'll let you run it in the office using my stuff, and peer review. You run the whole thing at whatever fee you want to charge them. I will allow myself to be exposed a bit. Still your contract, done in off-hours, you keep the money.
Why? Part of it is I want to see how well you can manage this stuff all on your own. It's a good way to help spot those that can handle difficult projects; And family and friends ARE the most difficult clients because they want 'everything', feel free to be confrontational with you, and expect it for almost nothing. The other is that your friends and family aren't likely to sue simply because with you being the name on that contract, they have to sue you directly to get to me. I know there are greedy horrible people out there, but I also trust you enough to know who they are and you wouldn't work for someone taking advantage of you like that.
The other kind of moonlight project I've got no problem with: Charity. I've brought in, and others here, weird little projects to just help someone or some organization out. I'll take on full liability if you want to charge pro-bono or work it for free.
The type of moonlighting I don't tolerate is the 'for profit' sort. Favors, goodwill, etc. you do for fun, to help out, or just for something cool to work on, I don't have an issue with at all and will assume a lot more liability than you'd probably expect.
^ Well, you sound like a good boss. Possibly great. Any openings...? ;-)
Of course, some friends just need some minimal help, and most are never really going to ever build anything! You know the drill. However, I have one friend of a friend who wants to build a house on 10 wooded, hilly acres -- and from the magazine images he's shown, it's very interesting to me. There would be a decent fee involved for me -- i would very likely profit from it.
How would something like that strike you if I were an employee?
And um... to clarify how this legal stuff really works. Most lawsuits I've worked on aren't frivolous at all; Millions in damages. There is a reason for that. Basically, you got to screw up bad enough that the damages will exceed legal cost to make it worth really pursuing. Attorneys and trials are expensive... and I hate to say this, but my insurance company footing the bill for the defense has much deeper pockets than your typical client who'd hire a moonlighter or even my firm. That's why they name the firm and the insurance company knows this. They are essentially defending their own pockets; Deep pockets worth defending means very good legal representation.
A very common tactic is to drag the process out.... that increases your legal fees considerably because 'time is money'; my average lawsuit takes 2-3 years to work through the system. They'll bankrupt you for trying to win a few thousand. Hell, my average billing just to perform a investigation on a single family and write a report will be over $10k... that doubles with disclosure and depositions... triples if I have to go to court. How bad do they want to sue you? I've had a couple cases where my legal billings for it exceed $400k and sucked 5 years off my life.
Anyone can sue.... but they have a shot at winning against you, Mr. Moonlighter who can't afford good legal representation. But me, backed by a insurance company and teams of legal sharks?
I pay my $10k deductible, and then they'll be facing the real sharks who specialize and litigate in construction defect law and teams of experts. That family attorney the plaintiff hired is out of his league and will get schooled fast by these attorneys who know this industry and can ask the right questions and get the right experts involved. The specialized attorneys won't take on nickel and dime cases... they want the big lawsuits.
So... that lowers the risk considerably even if an employee gets caught moonlighting. It's already a hard argument to link the firm's direct involvement... but to do that when you barely understand the profession?? Most attorneys recognize a tough fight when they see it... only a minority would try to tackle this without some real compelling evidence. Sure, they might write the letter trying to get you to settle, but when push comes to shove, they'll cave knowing how weak their side is.
I have a $10k deductible. So, when someone threatens, that's essentially the card I hold. Most firms settle before it gets there. My basic choice is whether I want to pay my corp attorney to fire back a response (about $2k) or settle ($2k is easy) or open Pandora's box and sick the insurance company on that plaintiff with a weak case. And to be honest, if I had to settle, I'd renegotiate that employee's salary IF I still wanted them to cover the problem. If it goes to actually being sued, I've got no choice but to fire them.
Basically the way to protect yourself; Nothing in writing showing a direct connection. It should also not be common knowledge so and so is moonlighting AND that it is a firing offense. Material and intellectual theft from the company is not a liability to the firm and really hard to prove something when everything points in another direction. My attorney's will show what a redlined set looks like, walk through what peer review and oversight is, etc.. the defense won't have anything like that. My side will prove the moonlighter had access and the now apparent financial motive to steal title blocks, details, time on equipment, etc. Most plaintiff's don't have anything more than this person being an employee. I have always wondered if those insurance sharks also sue the moonlighter for legal fee's. I know typically the 'loser' in the case pays reasonable legal fees for everyone involved.
So basically, who's taking the biggest risk of them all is the moonlighter. He's risking his job, and opening himself up to liability from both the employer and the client without having some sort of coverage.
However, I have one friend of a friend who wants to build a house on 10 wooded, hilly acres -- and from the magazine images he's shown, it's very interesting to me. There would be a decent fee involved for me -- i would very likely profit from it.
How would something like that strike you if I were an employee?
Get's fuzzy. Since I don't do residential (so it's a non-competitor market), and it's a friend, I'd probably allow it or work out some sort of deal with you. Probably more like you do it on off hours, and making sure you know you do not use anything or give any reason for that client to believe the firm is involved in any way.
I had an employee once who's husband was a stonemason/carpenter. She did all the drafting and architectural stuff for him (like code studies, exiting plans, interiors). His specialty was more those 'interior monuments' like bars, fountains, rock walls and lobby features. She was quite upfront about it before I hired her. Since he was a licensed corporation, and was all set up and insured... we just set some ground rules. On her own time, using her own equipment from home. She was doing some pretty cool stuff and would bring in photos.
Another I had was married to a self-employed landscape architect. She too did all the architectural stuff for him. Same deal.
If either of them had something too big to tackle, they'd bring that work into the office essentially hiring us. So I've done football fields, baseball dugouts from that landscape architect. A restaurant remodel, and a couple TI from that stone mason. Basically I help them out, they help me out. We sent work to their spouses too...
MightyAA, two thumbs way up for an excellent response to the topic.
Thanks for the very detailed response, MightyAA -- great info.
Sounds like you run / (ran?) a great place to work.
Mightyaa - Excellent!
There's also another approach I've used. With my clients, they sometimes come to us with silly and small projects either personal or for their firm. I hate those basement or kitchen remodels.... Funny, but that is the scenario behind a half dozen houses and forty or so home remodel projects.
These projects are too small to run profitably in-house without throwing out a ridiculous fee and risk the anger of this important client. So, instead of taking a hit, I would approach an employee.. I'd say "how'd you like to earn a bit more money?" and work out a deal where they do the majority of it on off hours on their own time and I'd cut them a bonus check for the service. They'd get to set their own price and negotiate with me; the IRS is happy, the client is happy (and I'm still the only architect they know and trust) and the project is covered under full insurance..
My father ran his studio the same way. He also passed on clients he didn't want to work with to us - some of them because they didn't pass the smell test.
Of course they were never particularly thrilled NOT to get Norman ... so it was often a bust.
Miles, hell of a thing running a small practice…they always want “you”. Took me decades to break that but even then I had to go along symbolically. I wasn’t that big, 64, but when you sold the order it was that face they still expected to be “involved”. I heard from an old sage once say to a client….”sorry I can’t be there, but it isn’t that this isn’t important, but need to attend to something more complicated”. Used it often.
Superbly interesting thread.
How I manage moonlighting:
No emails get answered outside of lunch hour, while I am outside of the office. No calls get answered in the office or during office hours. No research is done in the office. No drawings from the office are ever used as reference: I resolve everything myself. I don't even keep office files in my computer. I have intentionally made my drawing format as different as possible as that of where I work while still keeping it easily understandable.
I have created an LLC., and all expenses go through it. I keep the LLC public in my social media profiles. I have nothing to hide and if my employer wants to engage me in that sort of conversation, they're welcomed to. I've brought enough big clients to my boss' firm.
I charge as much as project architect would elsewhere (I had a client once tell me she expected to pay 80 dollars an hour for my services - I told her to go elsewhere because no one with my skill set would work for that price - she called back next day and agreed to the price with a hefty retainer fee); I know my break-even rate. I know how many hours I'd have to bill if I wanted to go off my own. I use no pirated software. I save or invest most of what I earn.
What my side clients get is fast-delivery, accuracy and a direct-line to me which is not what happens during my day-job. I don't schedule myself at work, so day-job client work is subject to the wants of the partner and how he allocates manpower; not my problem - I feign stress often, but in reality, I'm rarely ever stressed at work - Not because I don't care, but just because I've lived through a lot worse situations than a client screaming over the phone.
My day-job has a well-phrased moonlighting policy. No competition with the office. No outside work during office hours. That's it. It acknowledges the fact that most senior personnel take on outside work. It's not particularly hard to do that since I generally only take on small jobs at home. Large jobs, I actually refer to the office, and I've brought a few big hits that way.
While I never mention my work during the day, it's pretty funny how my boss has slowly come to suspect this. The "how the hell do you know that? we don't do that sort of work." (and my resume doesn't say that I've done that sort of work) is often followed by a knowing grin.
That's my story.
Seems like you've thought this through, null...! I particularly enjoy the "feigning stress" part.
How have you, or else anyone doing sidework, handled construction phase duties. That is, it's easy to design a house evenings and weekends and separate from the 9 - 5; however, how do you handle "emergency" questions during construction -- most of which, of course, happen during your day job hours?
despite the stress involved, there are very few true "emergencies" in architecture
^ Hence the quotes marks.
good stuff!
^ Except where clients are concerned.
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