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I was hired for my current job (in a very old industry) around 8 months ago specifically to modernize the company's tech stack and also to improve overall tech culture by introducing modern tech stack, development processes etc. based on my experience working with startups.

Now, due to COVID-19 related politics, my employer does not have resources to pursue these projects and cancelled them. But my job seem to be secure as they have still lots of old tech which need to be supported and somehow be sold to new customers.

Understandably, I am thinking of quitting as these new tasks do not offer any prospects for me and even a vision is missing. But there are arguments against quitting as I want to avoid the image of job hopping and also hiring is weak under current market conditions, so it may be not wise to quit.

I am considering the option to continue in my current job for a while at least by limiting my engagement to just for the hours I am paid for and during my private time work with newer technologies on private projects (also by contributing to open source, etc. as I work with communities). This would prevent my skills from getting rusty and also give me some sense of fulfillment.

My contract says that I am supposed to bring all my "energies and commitment" to the job and fulfill the demands of job even by working overtime if there are tasks. It just assumes an average work week of 40 hours and no overtime payment. (I live in Europe if it helps to know.)

Now comes the crux of the question.

Given the above condition, could spending my extra energies on things I really want to pursue, but have nothing to do with my tasks (and unlikely to benefit my employer. in the near future) be seen as wrong a) legally or b) ethically? (as could this be interpreted as moonlighting of some sort).

As taken from the contract, preventing "gainful secondary work":

...all of your energy to serving the employer and safeguard and promote the company’s interests and concerns.

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    Comments are not for extended discussion; this conversation has been moved to chat. – Mister Positive Oct 9 at 18:17
  • "limiting my engagement to just for the hours I am paid for" - wait, why would you even consider doing anything else? Do you normally do work for free? – fgysin reinstate Monica Oct 13 at 16:23
  • the point is - i work during my private time either experimenting or supporting technologies which I like...so the line here is blurry. Somehow I worked in environments where people think that if you are passionate about these stuffs even privately, then this is adding to the job. – kube_user Oct 13 at 21:15

11 Answers 11

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I assume your contract states how many hours you are supposed to work for the company in a week. That they require you to work overtime when needed does not mean that all your not working time belongs to them. In a nutshell: You give them a certain amount of hours of your time, they give you a certain amount of money in exchange.

As long as you don't use company resources and knowledge for your side activities you can do whatever you like in your free time. They are not paying you for those hours.

To word it differently, when you go to a restaurant and order and pay for a dish you don't expect to be served other dishes or more than the amount your ordered, isn't it?

What you have to be careful about is to not start underperforming in that job because of what you are doing on the side, i.e. spending the nights on coding and then being asleep in the morning.

Finally, a word out of my experience: my first employer hired me after we met at an event where I was participating as volunteer. When I started working he suggested that I should put effort only in working for him and drop any other side activity I might be busy with, including the volunteering. Then, when he was looking for excuses to terminate me, he said "the fact you have dropped all your side activities shows you have no ambition". Always keep in mind that anything you say or do can be used against you.

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    Comments are not for extended discussion; this conversation has been moved to chat. – Mister Positive Oct 9 at 11:36
  • It isn't quite that simple. There are some narrow cases in which side activities can be a breach of contract on your primary employment. See my answer for some examples. – Tom Oct 11 at 9:59
  • As long as you don't use company resources and knowledge and your side activities in no way compete with or harm the company… Big, big difference! – Robbie Goodwin Oct 11 at 18:30
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Then don't use "energy" to do other things. Just sheer "will power".

A mumbo-jumbo answer to mumbo-jumbo demand.

If your contract forbid you to take secondary job it would say so. For example mine states that I cannot work for my employer competition or work on personal projects that are based on employer knowledge (patents, solutions, TM's and similar).

Next thing - in EU you cannot have 40 hours week AND overtime AND not get paid for that overtime. If you don't get paid you use that overtime depleting the "40 hours week".

What you have quoted is puffed text that means nothing. It's not "company's best interest", it's just interest. Not paying you is in company interest because they save money.

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    after reading the replies and comments and also reading through the contract once more, I think my question could have been phrased "is pursuing private projects outside work considered gainful work legally or ethically" – kube_user Oct 8 at 7:33
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    @kube_user It's legal and ethical. Illegal would be if the company CLEARLY stated you cannot AND compensated you for forbidding doing that. Unethical is not honing your skill, not trying to improve yourself and not making the best use of your skills. It's your company decision to not use them. – SZCZERZO KŁY Oct 8 at 7:40
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    @kube_user I would guess gainful means essentially paid in one way or another but is phrased that way to prevent you loopholeing that by getting an unusual form of payment . – Daniel Oct 8 at 12:40
  • "Not paying you is in company interest because they save money." so true! – Fattie Oct 8 at 15:33
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    Maybe a nitpick, but our OP said "in Europe", not "in EU". These are not the same things. Actually the tag on their profile implies United Kingdom. – kubanczyk Oct 8 at 16:13
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My contract says that I am supposed to ... even by working overtime if there are tasks.

Walk away and never look back.

My contract says that I am supposed to bring all my "energies and commitment" ...

Walk away and never look back.

The only way to describe these people is "insane". Or perhaps they have time travelled from the 1400s, or something.

  1. "Work to live, don't live to work."

  2. Never, ever work a second over the regulation 35 hours.

Particularly if this is software related, there is for some years now just so much demand that any programmer, even the most junior, would just laugh at such conditions and move on.

It's risible - forget this company.

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    +1 from me ! sometimes I see answers like this get down voted and it drives me crazy, don't be grateful for having a job, be grateful for living in a country where it is not that hard to get a job ! – PeterH Oct 8 at 22:00
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    You are 100000% correct, @PeterH – Fattie Oct 8 at 22:37
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    Answer is overly dramatic, but correct. I wouldn't walk away. Realize that lots of contracts include unenforcable clauses. The company lawyers have probably pointed that out already and HR essentially said "does it harm us to keep it?" – Tom Oct 9 at 7:34
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    3. Don't ever get a tap on the shoulder with a quiet suggestion that you think about applying for an upcoming opening. 4. Be in the first group (maybe 2nd if there are some real incompetents) of layoffs in hard times. – mcalex Oct 9 at 8:30
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    This is just lawyers. It's quite likely your manager and his/her manager and their manager haven't even read this stuff. That said, I have never accepted these clauses in my employment contracts. I requested them to be removed when I was hired and they were removed... (although I suppose this may not work with larger companies). – obe Oct 9 at 20:30
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My contract says that I am supposed to bring all my "energies and commitment" to the job and fulfil the demands of job even by working overtime if there are tasks.

While this could only be deductively answered by a lawyer with the knowledge of local regulations and by having gone through the terms of your offer letter. But if your contract does not explicitly mention about the ownership of work done during your time away from job, you should be fine legally.

Brining all your energies and commitment does not imply that you cannot work on personal/non-commercial projects in your personal time, but it's better to read through the terms of employment to get a good clarity if any such work would become property of your employer.

With the legal aspect covered, it could be argued strongly that it isn't ethically wrong to spend personal time on personal development.

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I've had a clause similar to yours "preventing gainful secondary employment". All it really meant was that I could not do side hustles and other paid-for work outside of my primary employer.

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  • I ALMOST had a clause like that, but for that reason (and several others) I decided at the last minute to NOT take the job and keep looking. In fact, I checked with my manager-to-be to see if that was "real" or just some silly boilerplate. They said, it's real, you're not allowed to write any code for anyone else. I noped out of that one. – Bob Gilmore Oct 8 at 15:48
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    @BobGilmore for me, after clarifying, it was no for-profit code. So personal/OSS code was fine. Just no other money earning at the side. I didn't care for that clause, I was so depressed I barely had energy for one job. – Jan Dorniak Oct 8 at 15:56
  • I've had contracts changed for me because of that. I used to play in a band and run PA for other bands, and I got paid for it. The contracts were changed to "no other paid work in any field of engineering relating to $company" or something like that. – Graham Oct 8 at 20:50
  • @Graham my contract had provisions for written permissions. Because of reasons I got one together with the contract. – Jan Dorniak Oct 8 at 21:03
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    @JanDorniak In my case, I asked them about that clause, they said it was only for-profit code, and then I insisted on them writing that in the contract explicitly and they did so. – user253751 Oct 9 at 11:48
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This is a pretty standard clause in working contracts, and - depending on your specific country - is routinely judged as bullshit in courts. Your employer pays for your work time and has no say over your private times. You're an employee, not a thrall.

In the german speaking countries (Germany, Austria, Switzerland), court decisions clearly mark the limits of such clauses. Your side gigs can not:

  • be in competition with your employer
  • bring you close to or above the maximum working hours allowed by law
  • damage your employer (reputation, illegal work, etc.)
  • a few very specific exceptions (no trading business, etc.)

Employers put a lot of things into contracts that they know they probably can't enforce in a court. They do it because a) not everyone goes to court and b) if you put it in the contract, you can at least try.

There may be a case for your employer if your side-gig takes so much energy from you that you can't properly work your normal job. For example, if you'd DJ three nights during the week and are always tired and can't focus. I'm not aware of actual court decisions, though.

IANAL and this is not legal advise, though I do have legal training and experience in this area. What I state is valid for DE, AT, CH - other european countries might differ, but you didn't state a country.

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Depending on the jurisdiction, there is a risk that your contracted employer will claim ownership of any intellectual property that you develop in your spare time.

I think that I'm in disagreement with the majority here, but I'd be inclined to try to set up a meeting with the directors and make the case that since you were still on their payroll you considered it your professional responsibility to work to the company's advantage, that you had slack time due to your primary responsibility being curtailed, here was a list of areas where you think you could usefully spend some time, and how about a promotion (e.g. to an executive position where you answered directly to the board) if you could successfully move things forward?

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  • all valid points.. – kube_user Oct 8 at 15:38
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    This is important. It wasn't the actual question, but some jurisdictions explicitly rule that even in your spare time, your employer owns your invention - but if you made it in your spare time, he has to "adequately compensate" you. – Tom Oct 9 at 7:36
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  1. It's absolutely ethical to do things outside work that interest you. That includes learning about new technologies or doing things just for fun. The limit is where it affects your ability to do your job.

  2. Worked hours must be paid. If they want you to do unpaid overtime, you don't do the overtime.

  3. The way how you move jobs: You don't tell the employer anything. You look for a new job. When you have signed a legally binding contract for the new job, then you give notice.

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I think you are overthinking it too much.

You can do whatever you want to do in your free time unless it breaks laws, obviously.

In here one cannot have two full-time contracts at the same time. 1.5 is okay. It is based on setting boundaries between work, relax and sleep. And working too much elsewhere affects one's performance in the first job.

It is also wrongdoing using the company properties and access to your own monetized benefit.

On the other hand, contribuiton to OpenSource community and other you mentioned actually means that you are actively improving your skillset. And this shows your commitment to your work, which is in the contract, by the way.

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Improving self knowledge is mandatory for a great career.

Now, due to COVID-19 related politics, my employer does not have resources to pursue these projects and cancelled them

This doesn't say that you employer won't change in the future. I am witnessing some companies that due to marketing choices, but with excuse of COVID, are willingful shrinking their business, or at least that's the view of those company's lower management. But that may be not necessarily your case.

That said, you should still work for yourself.

Could spending my extra energies [...] be seen as wrong a) legally or b) ethically?

Legally not. You own your extra time. I don't know what you are supposed to do during the 40-hours if at some point you lack assigned tasks, but when you clock out you own your life. And since you are not refusing to perform overtime, because not requested, you don't legally owe your personal hours.

Ethically, I have two pros for you. Not only it can be seen by the employer as an investment (free investment, for them) once the COVID era will be over and the company will start growing again, but arguing against your choice will be miserably dangerous for your company's reputation.

I mean that once you learned a lot of new great thinks, you will either be on good stand to ask for a promotion, or have stronger grounds to leave for a better pasture.

A company that discourages self-improvement and learning is a company that likes to keep their employees' education/skill-level low. And that is toxic enough.

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If you spend your energy for unrelated projects outside of your working hours, you don't get a rest as good as the rest you would get if you didn't work on side projects. Also, to a degree, your mind will get occupied by issues related to side projects. This means that even if you work for your company the required number of hours per week, you still may - and most likely will - somewhat underperform at your work as compared to the scenario in which you don't work on side projects. Your employer doesn't pay you for your time - he pays you for your effort.

So yes, I'd say that strictly speaking, working on side projects violates the contract you signed.

But I'd look at the issue from a different perspective: as long as your employer is happy with your performance enough not to bother replacing you by anyone else on the job market, you deserve every penny paid to you by your employer, even if you could perform at your work better. You do enough work for the money paid to you, so it's fair and square. So if you have any energy left and are willing to spend it on side projects, then go for it.

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  • You're right to some extent...the mind somewhat occupying with cool things outside, but then there are two sides to the coin - when company was aligned with what I am passionate about, this was all fine and well. I was hired for doing a certain job. But circumstances are forcing me to perform tasks for which I am "overqualified" so to say. Here, the ideal choice is to quit it, but market is weak and to begin with, they put me in this circumstance by hiring with great promise (actually I am not alone, there are 3 others in the team with similar fate and this Q&A is for all of us!) – kube_user Oct 11 at 8:40

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