Defining the on-topic / off-topic line on questions that could be answered by a lawyer

Question

The question Does an Employer moonlighting clause relate to personal side projects, and do I need permission? has been closed by five community members as off-topic.

The question could somewhat be construed as an employment law issue. While we're not lawyers, we do have workplace experience, and our experiences may still be valuable, so long as the questions aren't directly asking "Is this legal", as we're simply not qualified to answer that.

Focus on whether or not Workplace Experts can answer

On day 2 of private beta, Andrew asks Are employment law questions off-topic?. Thomas Owens comes up with this guideline to help determine if an employment law question is on topic:

Could I, in a professional environment, be expected to know the answer to this question?

I personally know many people who work on side projects where it's both encouraged and allowed, in addition to their own work; and I've also worked in places and have had friends who have worked in places where this is not allowed. While I couldn't give a definitive legal answer like "if you don't tell your employer, you'll be sued for X amount", I can offer steps to help that person determine the right course of action for their unique situation.

Based on this criteria, for this situation, I would not have closed it.

Additionally, Tangurena says the following when referring to the open question on sharing salary information with others:

Many questions are going to wander into matters of law. As an example, the question on whether folks should share salary information ends up squarely in the domain of a regulatory agency in the US. While almost none of us will be lawyers, and thus we cannot be giving legal advice, most employment matters are covered by laws and regulations.

In the salary example, and in the personal project example, both questions drift into a legal area, but there is also a professional Workplace component to them, one that can affect a person's relationship to his/her boss. Specifically, this is a trust component.

It's subjective, of course, but this entire site is about a subjective topic, and as long as we get good answers based on facts, references, or specific expertise, I'm inclined to think the question is acceptable.

Using Answers As a Guide on Borderline Questions:

From the blog post Real Questions Have Answers, Jeff states the following:

...the six guidelines above depend partly on the questions, and partly on the answers.

emphasis mine

Out of two answers, one of them is really good. (The other doesn't drift into the legal area, it's just doesn't provide much explanation). Thus, if faced with a question that could be answered by a lawyer, but that doesn't have to be answered by a lawyer), if it's getting good answers, can we use answers to justify keeping it open?

Summary of proposed guidelines when evaluating questions:

• Assuming lawyers can answer the question, could we, as workplace members, also answer the question with facts, references, or specific expertise?

• If a question is getting good answers, should this help justify keeping the question open, using the same logic Jeff uses for polling questions in Real Questions Have Answers.

What are reasons for and against these guidelines as it pertains to the Workplace SE?

Answer 1

I see what you mean - there's been quite a few questions out there where I've wrestled with the tradeoff between common sense answers that aren't legal answers from a lawyer but are likely to keep you out of legal trouble versus shying away from it entirely to avoid giving answers I'm simply not qualified to give (legal answers from a lawyer).

I'll admit there's a few key triggers for me, and the question you point out caused at least one, maybe a few:

1. Legalese - "enforceability" is one, so is "jurisdiction" (when applied specifically to the law of a location... I realize there are policitical maneuvers where this is a fine, non-legalese word), "liability" (especially financial), "lawsuit", "sued" - are all big red flags when I read a question. If the person is basically asking if one of these legal sounding words could happen to them if they make a given choice, it raises the probability that I'll flag it for closing. If the question can be restated by the poster as "what is the most advantageous way to do...?" or "what is a sensible approach for addressing....?" then I am far more likely to see that common sense and a bit of research can form a decent answer.
2. Cases of "I know the rules but I want to do something else" - Which is also a case in this answer. If the question was whether moonlighting could or should be done in a given a case, I'd have plenty of good and bad examples, and be able to write a checklist or something for starting up with moonlighting gigs for fun and profit. But where the poster says basically "I was told not to and I signed an agreement to that effect, but I want to anyway" - it falls into the range where I'd either point him to the law codes for California and the case law or tell him to get a lawyer, because this is no longer about how to make his office environment productive, successful or generally better - it's about how to evade, ignore or work around a signed agreement, and I can't get there based on common workplace experience.

Admittedly, I've often wondered if we could have a special category for closing called "needs a lawyer". My thought is that we would be able to collect legal-esque questions in an easily searchable way, and see if there are some common threads we could address through either better guidance, or advancing our common knowledge on how research these kind of questions - for example, if we have better "you need a laywer" litmus test, or even a "what kind of lawyer do you need?" referall program, we might be more helpful than we are now.

Also - if we have a "this is a legal question" closing item, then we might inspire posters to realize that what they asked sounded like a legal question, when really it was a more general question, and that would perhaps help with rephrasing the question. For example, if the sample question was - "how do I get what I want in spite of this rule?" - I could see the community coming up with a variety of answers ranging from "get a lawyer and fight it" to investigating the root cause and presenting a good case for a waiver in a way that doesn't cause any laywer-requirement. But the question as it is happens to be too pointed towards ignoring a signed aggreement for me to feel comfortable answering.

Answer 2

I was torn between closing as "Off Topic" and being "too localised", based on the use of Californian law, the signed code of conduct and wanting to work on a start-up.

I thought about edits that could save it from this, and the (remaining) answer actually fits a different question :

"I'm thinking about working on a project in my own time that may turn into a start-up idea. I'm not using company resources. I have a clause in my employment agreements that says I have to notify the company if I work for someone else, but initially at least I'm just playing around. A lot of start-up ideas never get off the ground. Do I have to let my employer know about this?"

This would have drawn out key issues around this, as well as perhaps some more general definitions about paid/unpaid work (for example providing work-related skills pro-bono to a not-for-profit, to a friend's start up, or even writing and selling an App in your spare time.)

I'm still nervous about applying such wholesale editing to someone's questions, however, even though it does open the question up to some very interesting areas - but that's just me.

It is common, however, for employees and employers not to be fully aware of their legal rights and responsibilities. I have had to push back on staff (and on one occasion, management) pointing out that what they wanted to do (or were doing) was against the law, or met a legal definition (harrasement etc.) that could lead to the court room.

So - my view is that pointing out where there could be legal implications for what they are doing (depending on local conditions) and suggesting legal advice is the best course of action is fine, but asking for legal advice (or refering to a law, as in this case) is not.

Answer 3

I think that the cited question could be saved by changing it to:

I want to start up an LLC in my spare time what steps do I need to take to deal with my moonlighting clause?

It also needs the wording of the moonlighting clause. These are written for protection of both parties(thought usually bias toward the employer) and the idea is to avoid conflicts from popping up after the damage is done. Thus avoiding the need to go to court. They are usually at least readable and with reading them we should be able to give guidance of how to proceed.

It needs a location. The rules are different in IL, CA, NC, UK, France, and pretty much anywhere else that has its own borders. So the where the poster is asking about matters here. It may be that the OP needs to get a lawyer but we should be able to give some guidance before the OP has to get to that point.