By Tara Hoke
This is a hypothetical scenario based on cases reported in the article “The Dark Side of Employee Moonlighting,” available from the Engineers Joint Contract Documents Committee at www.ejcdc.org/knowledgebase.
SCENARIO A geotechnical engineer who is an ASCE member takes great personal satisfaction in his involvement with local charitable activities. When not engaged at his full-time job for a large consulting firm, the engineer can often be found doing volunteer work for his professional society, his church, and a local youth center. While the engineer’s employer is somewhat supportive of the engineer’s community service activities, the engineer often finds his work and outside interests to be in conflict, and he is regularly called upon to juggle his volunteer commitments around his employer’s inflexible work schedule and other demands.
When the youth center embarks on a significant upgrade to its outdoor facilities, including expanded sports and play areas and a new parking lot, the center’s leadership expresses interest in retaining the engineer to perform a geotechnical investigation and related services for the project. While the engineer is eager to take part, he knows that the work is not the typical kind of project undertaken by his firm, nor does he believe his firm would be willing to perform the services at a rate the youth center’s limited budget could accommodate.
The engineer decides to take on the work as a side project, advising his new clients that he will provide services in his personal capacity, working after hours and on weekends. The engineer’s firm does not have a formal moonlighting policy, and the engineer does not inform his employer of his involvement in the youth center project.
Unfortunately, the project does not go smoothly, as unexpected soil conditions discovered during the construction phase extend the expansion work considerably past deadline and over budget. When relations deteriorate past the point of negotiation, the youth center sues everyone involved in the project, including not only the geotechnical engineer but also his employer.
The employer attempts to extricate itself from the litigation, arguing that the firm neither knew about, nor derived any benefit from, the engineer’s work on the project. But though the engineer had endeavored to draw a clear line separating his employment at the firm from his side project, the youth center is able to produce evidence that blurs this distinction — including copies of correspondence from the engineer on his company letterhead and documentation of calls made and received from the engineer’s company phone.
QUESTION If this had been an actual case involving an ASCE member, what would the ASCE Code of Ethics say about the engineer’s conduct in this case?
DISCUSSION As previously noted in this column, one obvious difference between the current ASCE Code of Ethics and its predecessor is the substantial reduction in word count. With its four fundamental principles, eight canons, and more than 40 guidelines to practice, the previous Code of Ethics comprised roughly 2,200 words of ethical doctrine. In contrast, today’s code is a mere 700 words.
In order to achieve the goal of a leaner, more concise Code of Ethics, the new code’s drafters chose to forego much of the old code’s specificity — repositioning the code as a statement of high-level, more broadly applicable ethical guidelines rather than a list of individual do’s and don’ts.
By way of illustration, the previous Code of Ethics expressly addressed an engineer’s ethical obligations when considering a moonlighting engagement; guideline g under Fundamental Canon 4 of the previous code stated, “Engineers shall not accept professional employment outside of their regular work or interest without the knowledge of their employers.” The current code, conversely, contains no direct references to moonlighting, only the general instruction in section 4a that engineers “act as faithful agents of their clients and employers with integrity and professionalism.”
Readers of the new code might question whether the absence of express language on moonlighting was merely a matter of abridgment or a change in ethical philosophy — and consequently, whether the new code should be construed as signaling that it is no longer deemed unethical for engineers to take on outside professional work without their employers’ knowledge. In fact, there is some indication that the removal of the old guideline 4g was designed to scale back on the earlier ethical prohibition.
While the code’s drafters generally considered transparency regarding outside engagements to be a best practice, some felt that the old language was at odds with prevailing trends of respecting employees’ privacy, expressing concerns over giving employers too much say in their staffs’ off-hours activities.
Yet at the same time, the drafters of today’s code certainly did not intend its silence on the subject to suggest that an employee’s decision to take outside work without the employer’s knowledge is completely free from ethical question. At its essence, the ethical obligation to serve “as faithful agents” represents an expectation that engineers will not permit other interests to cause harm to employers or clients — and perhaps no choice is as fraught with potential harm as an engineer’s decision to take outside professional engagements.
These harms range in magnitude from intentional harms, such as engineers who poach their employers’ clients or misuse company resources, to unintended consequences, such as those demonstrated in the current scenario. Even less tangible impacts could be costly to an employer, as would be the case if the stress of an engineer’s moonlighting activities were to cause distraction, absenteeism, or other negative impacts on the engineer’s performance.
Though the risks posed by moonlighting are not directly tied to disclosure of the activity itself, if an engineer’s lack of transparency creates or increases the magnitude of harm to an employer, then the lack of disclosure can ultimately be characterized as a failure to act as a faithful agent.
Accordingly, if the case described here were brought to ASCE’s Committee on Professional Conduct, it would likely rule that the engineer’s moonlighting had exposed his employer to undue legal liability. While the engineer had not purposely sought to cause his employer any harm, he had failed to adopt adequate precautions to protect his employer from unwelcome consequences, for example, by going through the formalities of establishing a separate practice, procuring liability insurance, and carefully maintaining separation between his regular employment and his side project.
Moreover, though the current code does not expressly require disclosure of outside engagements, the CPC would likely have noted that disclosure in this case would have mitigated the worst of the harm sustained by the firm, as it would have given the firm an opportunity to raise objections or concerns about the engineer’s involvement, or conversely, to proceed with the project itself, allowing the engineer to make use of the firm’s full range of resources and expertise. For those reasons, the CPC would likely rule that the engineer had violated his ethical obligation under section 4a of the ASCE Code of Ethics to act as a faithful agent for his employer.
Though the recent changes to the code may create room for contrasting views on the ethics of disclosing moonlighting activity, with some believing employees should never keep employers in the dark about outside engagements and others feeling equally as strongly that what employees do outside the workplace is their business alone, the overarching principle of faithful service remains unchanged.
Engineers contemplating professional activities outside their regular employment must be sure to balance their pursuit of these private interests with their ethical duty to support their employers with loyalty, integrity, professionalism, and care.
Tara Hoke is ASCE’s general counsel and a contributing editor to Civil Engineering.
This article first appeared in the January/February 2022 issue of Civil Engineering as “Moonlighting without Employer’s Consent Raises Ethical Questions.”