Moonlighting policy for NEMT drivers: rideshare side jobs, a second NEMT company, and fatigue

Moonlighting is a driver holding a second paid job, and a moonlighting policy is the written rule for it. A NEMT company can set that rule, as long as it aims at the job the driver does for you: hours, rest, rider information, company property and conflicts. A flat ban on all outside work is the weak option, because some states protect lawful off-duty activity. The fatigue side is covered in the driver fatigue guide and the federal hours rules in the hours-of-service guide. What a driver may do after leaving is in the non-compete guide. This page covers the rules for a current driver.

Can you stop a driver from taking a second job?

In some states you can only restrict it for a job-related reason or a real conflict. Four statutes show how the protection is worded:

Colorado’s wording matters for a blanket rule. The job-related exception covers restrictions tied to “a particular employee or a particular group of employees, rather than to all employees of the employer.” A policy that bans every employee from every second job is the case that wording leaves out. A policy aimed at drivers on early shifts, or at work for a competing company, comes closer. A discharged employee in Colorado can sue for the wages and benefits owed up to the date of judgment. A winning plaintiff recovers court costs and a reasonable attorney fee, unless the employer had 15 or fewer employees in each of 20 or more calendar work weeks in the current or preceding year.

New York’s protection does not reach a paid second job as written. The statute defines recreational activities as lawful leisure-time activity “for which the employee receives no compensation.” California’s Labor Code 96(k) is a single line about wage claims, so ask an employment lawyer before you act on a California driver’s second job.

These four are examples, not a complete list. Check your own state’s labor department or statutes before you discipline anyone.

Do a second job’s hours count toward a driver’s limits?

For drivers the federal hours rules cover, yes. Section 395.2 counts as on-duty time any other work for a motor carrier and any compensated work for a person who is not a motor carrier. Section 395.5(b) sets the 60-hour and 70-hour weekly limits “regardless of the number of motor carriers using the driver’s services.” Section 395.8(j) goes further. When two carriers use one driver in a 24-hour period, the driver gives each of them a record of duty status that shows all duty time for the entire 24 hours.

For example, a driver covered by the rules works nine hours for your company and then seven more for another carrier the same day. That is 16 on-duty hours, and 395.5 bars driving after 15 on-duty hours following eight consecutive hours off duty. Any driving after the fifteenth hour breaks the rule, whichever company dispatches it.

Most NEMT vans fall outside these rules. They reach only a commercial motor vehicle on an interstate trip, and for passengers that means a van with a weight rating above 10,000 pounds, or one that carries nine or more people, driver included, for pay. A minivan on local trips never qualifies. The hours-of-service guide explains who is covered. For everyone else, your company’s own rest rule is the control, and it should count outside hours the same way.

What counts as a conflict of interest?

A conflict of interest is any situation where the driver can gain personally from what the driver does on the job. CareOregon’s NEMT provider manual defines it as a situation in which a person can derive personal benefit through actions or decisions made in a professional capacity. Among its examples are personal business transactions of any kind during NEMT service and advertising products or services for personal gain. The manual requires providers to report real or perceived conflicts to NEMT management, and to tell drivers the expectations when they are hired and as needed afterward.

For a second job, the conflicts that matter are work for another NEMT company in your market, soliciting your riders, facilities or broker contacts for the side business, and using your rider information. Side rides sold to your own riders are covered in the professional boundaries guide.

Broker contracts add a second layer. MTM’s provider agreement, in the version Pennsylvania posts, bars the provider and its employees from disclosing member information without MTM’s written consent. It also bars them from using MTM’s confidential information to start or further another business that competes with MTM. A driver who takes a rider list to a side business can put the company in breach of that term, not just the driver.

Rideshare, deliveries, and a second NEMT company

The risks differ for each kind of side work, so write the rule for each:

• Rideshare or delivery apps. In the driver’s own car and on the driver’s own time, this is mostly a fatigue and solicitation question. Require the driver to disclose the work so you can look at the schedule, and to turn the app off before a shift starts.
• A second NEMT company. The conflict risk is highest here: the same riders, the same facilities, and possibly the same broker. Ask the driver to disclose it, and ask your broker’s provider relations whether one driver can be approved under two companies before you agree.
• Side work in a company van. Never. See the next section.

Side work in a company van

Company vans, fuel cards, phones and uniforms are for company work only. A driver who uses the van for a second job, or takes passengers on the side, is carrying out personal business transactions with company equipment. Say that in the policy in plain words, and ask your insurance agent in writing whether the policy covers any use outside your own business, so the answer is on file.

Policy wording that holds up

A moonlighting policy that names its purpose is easier to defend than a ban. These seven parts work together:

1. Disclosure. Drivers tell you about outside work before it starts and when it changes, with the days and hours.
2. Rest. A minimum time between the end of outside work and the start of a shift, matched to your fatigue policy.
3. Hours. Outside hours count toward your weekly limits, for covered drivers by federal rule and for everyone else by your own.
4. Conflicts. List the situations above, including competing NEMT work, and require drivers to report them.
5. Property and information. No company vehicles, equipment, rider names, phone numbers or schedules for outside work.
6. On the clock. No outside work, calls or app logins during a shift.
7. Consequences. Approval ends if the outside work causes late starts, missed shifts or a fatigue report, and the same rule applies to every driver.

Put the policy in the driver handbook and the code of conduct, and keep the signed copy in the driver’s file. The discipline guide covers what to do when a driver breaks it.

Seeing the hours you control

Drivers clock in and out in the HealthRide driver app, and the driver activity report and timecards show each driver’s hours from those real clock-ins. Set those hours beside the outside hours a driver has disclosed, and you can plan the rest your policy calls for. The reports page shows what each report covers.