I work in IT sector full time and I have observed that every job contract comes with a clause about freelancing which talks about prior approval before doing any freelance work to avoid conflict of interest. I would like to know that if I am expert in only one thing which I do in my full time job and can only provide the same thing as service in freelancing projects then I will always have conflict of interest. Then how to do freelancing?
Prior approval is out of the picture because it can take many weeks to get approval and by that time freelancing project will be gone. Attaching the screenshot of the actual clause.
Looking for solutions…
by Traditional_Banana_2
3 comments
>Then how to do freelancing?
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Freelancing is a very big umbrella a lot of jobs fall under. Giving people MS Word lessons for money on the side. Building homepages for a mate of yours for money. Proofreading some IT-student’s bachelor thesis. Creating youtube videos about anything and getting ad revenue. Giving English lessons to fifth graders.
All these things and many many more you could do on the side as freelancer (or probably with a Gewerbe)
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>Prior approval is out of the picture because it can take many weeks to get approval and by that time freelancing project will be gone.
Not a lawyer but that is in my mind not how it works. You don’t get individual projects approved by your employer – after all they are your and your client’s trade secrets. You inform and ask the employer that you would do 5 hours a week **something** (here you fill in the details) as a self-employed side gig and have them determine whether this is a conflict of interest or not.
Not a lawyer here, but I think to meet the criteria of “conflict of interest” the employee would not only have to offer the same kind of work he does during his employment, but also offer this work to the same customers as his workplace does, or maybe customers that are somehow connected to his workplace customers would also meet the criteria.
I am not working in IT, so I don’t know enough about the culture in this field, but it is not uncommon (in the fields of work that I do know better) to offer the same services you do during your work also as a freelancer (to different customers).
You would usually not have to provide details of each singular project or customer to your employer, but just get written consent that you are allowed to freelance as a side job, make sure there is no conflict of interest regarding your customers and your employers customers, and maybe state how many hours maximum you would invest in freelancing per week / month or year into your freelancing. If freelancing, you should also make sure to get liability insurance cover for your freelancing work, and it will make your tax declaration more complicated.
If you really want to make sure you have your bases covered before talking to your employer about freelancing, go to a Fachanwalt für Arbeitsrecht, invest 230 Euro into an “Erstberatung” (of your freelancing gig is not worth this investment, then don’t even think about starting it) and get all the legal information you need for clearing this up with your employer. You could also ask colleagues if they have any experience with this.
If there is a project coming up right now for which you will not be able to get written consent in time from your employer, then tough luck. Get your stuff in order and do the next project that comes your way.
The clause cites § 60 HGB which is an actual law: it would be illegal for you to take on this work without first getting permission from your main employer. The clause in your contract just reminds you of your legal obligation here.