Corporate

Moonlighting has been a hot topic in the Indian job sector and some major Indian IT and tech firms have been cracking the whip on their employees for moonlighting. The issue of moonlighting has emerged as a big talking point after Wipro Chairman Rishad Premji flagged the issue on Twitter. "There is a lot of chatter about people moonlighting in the tech industry. This is cheating - plain and simple,” he tweeted.

What is moonlighting?

Moonlighting refers to employees taking up side gigs to work on more than one job at a time. This trend is a common concept in the Indian job sector. Recently it is making headlines for wrong reasons after severe backlash from several IT firms. Companies have always opposed this practice, saying that employees doing multiple jobs can impact their productivity. An employee usually works for 8-9 hours in his primary job, while he takes another 4-5 hours for moonlighting.

What does the IT employees union say?

Pune-based union Nascent Information Technology Employees Senate (NITES) has argued that moonlighting "is not feasible" for a number of reasons. "Aadhaar card and PAN card are now mandatory for joining any company. The government has also linked the Aadhaar card to the Employees Provident Fund account and each employee has a unique Universal Account Number (UAN) for the provident fund," Harpreet Singh Saluja, president of NITES, said, adding it is not possible for two companies to submit an employee’s provident fund contribution in one month.

Is it legal in India?

Indian laws do not define moonlighting. According to media reports, the laws stated below regulate dual or double employment to a certain extent. The Factories Act, 1948, restricts an employer from requiring or allowing an adult worker to work in the factory on any day on which they have already been working in another factory.

Expert views

Dr Arvind Singhatiya, founder and CEO, LegalKart.com, said moonlighting is legally wrong from confidentiality and professional liability perspective. It breaches confidentiality and liability of the employer. An employee during the time of joining signs on dotted lines to maintain confidentiality of company data and resources. Moonlighting invites unintended liability for his employer that poses a serious risk. Hence, it is illegal for any employee.

As a resource, an employer may accept his role as a consultant or a freelancer to provide his service to multiple options. As a freelancer or consultant his legal engagement with the firm will be transparent and would not pose any legal or moral dilemma. Always read your freelancer agreement carefully to check that your act is not violating any of its clauses.

A HIPAA confidentiality agreement secures the protected healthcare information ("PHI") of clients and patients. These agreements derive their name from the United States' Health Insurance Portability and Accountability Act of 1996, which mandates that patients' healthcare information remains strictly confidential. Thus, these agreements enforce an organization's obligations under the Act. Such duties mainly deal with the healthcare status of an individual and healthcare payment-related details. 

Healthcare providers sign HIPAA with third parties. Such third parties include but are not limited to, supply vendors, employees, contractors, volunteers, and even patients. While other agreements have different nuances, they each have some standard features. A patient's is confidential, so none of the information can be shared, collected, or used by whichever party acquires them. Furthermore, HIPAA mandates both civil and criminal action against violators: Offences attract a fine of up to $ 1,500,000 yearly, while "wilful offenders" may receive a jail sentence of upto 10 years. 
 

HIPAA CONFIDENTIALITY AGREEMENT FOR PATIENTS

HIPAA agreements are mainly concerned with the protection of a patient or client's health information. Thus, anyone signing the agreement cannot use, share or record such information without explicit authorization. 

However, patients may also accidentally have access to the health information of another patient. In such cases, they will be covered by HIPAA and have obligations under it. 

HIPAA CONFIDENTIALITY AGREEMENT FOR VENDORS 

HIPAA covers agreements with "Business Associates", which are defined as organizations that are not the other party and are involved in handling sensitive personal information. These are limited to organizations providing administrative, legal, accounting, consulting, management, etc. They do not include vendors of medical supplies, who may only incidentally have access to PHI.

Nevertheless, hospitals and clinics must also sign a HIPAA Agreement with their vendors. This agreement should clarify the nature of the relationship, i.e. a vendor is not considered an "employee" but a contractor. However, it should clarify that even if vendors incidentally or accidentally access the PHI of a patient/client, they are to strictly not distribute, use, or record this information. This requirement is materially similar to HIPAA Agreements for patients.

HIPAA CONFIDENTIALITY AGREEMENT FOR VOLUNTEERS

Volunteers are individuals who are involved in assisting the organization in a variety of ways. Most of them are very involved in the use of patients' confidential health information. As a result, they must sign HIPAA contracts. 

Most organizations that regularly deal with volunteers and students develop HIPAA policies. These policies usually lay out the HIPAA obligations of any student or volunteer involved with the organization. A policy makes these obligations accessible and clearly defined. 

Apart from the obligations mentioned in the above two sections, volunteers have additional obligations since they are more closely involved with health data:

• The PHI or confidential information of any patient should not be altered or deleted to any extent

• The use of such data should be restricted to the minimum possible limit

• Passwords and other information that gives access to sensitive data should be securely handled

• Any concerns regarding the integrity of PHI are communicated to dedicated individuals within the organization

• Revealing such data or using this information is indefinitely prohibited, even post-termination. 

It is crucial to confer confidentiality onto an individual's health data. HIPAA made a positive step in this direction by making it compulsory for organizations to handle this information. A culture has developed around HIPAA where organizations take their obligations seriously, and a patient's information is protected. Health information is deeply personal, and it must remain protected.

A variety of stakeholders can be exposed to a patient's data. This can include volunteers and contractors, but also other patients. Each of these individuals must understand their obligations under HIPAA. The contract is an effective way to provide adequate intimation and enforcement. While patients and vendors have reduced obligations, volunteers and interns are exposed to more PHI and thus require more scrutiny. Nevertheless, the system is generally conducive to protecting patient privacy and confidentiality.