פועל יכול לחזור בו אפילו בחצי היום
Bava Metzia 77a and 111a
You call a limousine company Monday night to pick you up Tuesday morning at 6:30 a.m. and take you to the airport to catch a 9:30 a.m. flight. The price you are quoted is $120. It is now 7:30 a.m. Monday morning and the dispatcher apologizes but he has no cab available to take you to the airport. So you hail a yellow cab, which winds its way through rush hour traffic and gets you to the airport on time, but it now costs you $170. Can you charge the limousine company the extra $50 it cost you?
You entered into an employment contract with your employer for a one-year term, but after three months you decide you do not like the job and you want to leave. Your employer tells you that you must honor your contract and stay another six months. May you leave?
You hire a removal service to hoist your new refrigerator up 10 flights of stairs to your apartment on the 10th floor. When the removal man reaches the fifth floor, he lets the fridge down on the landing, looks at his watch and tells you that he has to rush to another job. You now have to hire another removal company to finish the job, but it costs you more than it would have if the first removal person had finished the job. What are your Halachic rights in all these cases?
There are two competing policies underlying all of these situations. One is the policy against slavery, that is to say, that unless people willingly sell themselves into slavery, peoples’ bodies belong to themselves and cannot be commandeered for other peoples’ benefit. Or as the Torah puts it, – כי לי בני ישראל עבדים עבדי הם – “The Children of Israel are my servants,” not the servants of men.
No person can force another to work against his or her will. Accordingly, the rule is that – פועל יכול לחזור בו אפילו בחצי היום – “Poel yachol lachzor bo afeelu becheitzi hayom,” which means, a worker can quit any time, even in the middle of the job.
But there is another Halachic policy. Commitments must be honored and promises must be kept.The Halacha navigates between these competing policies. In so doing, the Halacha distinguishes between a – פועל – poel and a – קבלן – kablan.
A poel is a worker hired for a specific period of time to perform whatever task the employer directs him to do during that time. The relationship between the employer and the poel terminates when the time is over.
A kablan is a worker who is hired to perform a specific task. The relationship between the kablan and the employer is terminated when the task is performed. Because the situation of the worker (poel) whose time is not his own is more akin to slavery than the kablan who is free to decide when and under what conditions he will work, the Halacha is more protective of the poel than of the kablan. Accordingly, although both the kablan and the poel can quit in the middle of the job, the consequences of quitting are more severe for the kablan than for the poel.
If the poel quits a $100 job in the middle, the employer must pay him $50 for half the work even if the cost of labor has increased in the interim, and it now costs the employer an additional $80 to complete the job. If a kablan quits a $100 job in the middle and the cost of labor has increased in the interim, the employer need only pay him $20 for half the work, and then pay $80 to a new kablan to finish the job.
The freedom to quit a job at any time before completion, like the exercise of all freedoms, may need to be restrained to the extent that it hurts innocent people.
Accordingly, the Halacha prohibits both a poel and a kablan from quitting the job if this will cause the employer a – דבר האבד – “Davar Ha’aved,” a financial loss as is in the case of refusing to complete the carrying of perishable goods. In such a case, absent death or a medical emergency of the worker or a member of his family, the kablan and poel must complete the job. If they refuse, the employer must try to replace them with labor that costs the same or less. If he cannot do so, he may hire more expensive labor, complete the job in a timely manner, and charge the quitters with the extra amount expended to get the job done.
Because a poel is being paid for his time, he must be very diligent not to waste time on the job. Although customary lunch time is permitted, it should not be misused. Accordingly, the Halacha exempts workers who eat together on company time from waiting on each other for Mezuman.
It is equally forbidden to engage in activities outside working hours, which would exhaust one for the next day’s work and make one less efficient on the job. Neither may liberties be taken with employer’s property. The relevant question one needs to ask oneself is: If the employer were watching, would I refrain from using the object or would I continue to do so unimpeded?
Respect in the workplace must be mutual. Accordingly, the Torah and the Halacha forbid an employer to withhold wages that are due to and have been demanded by the employee. Even in cash-flow-tight circumstances, the employer should consider arranging lines of credit or the sale of assets to take care of his employees first.
Raphael Grunfeld received semicha in Yoreh Yoreh from Mesivtha Tifereth Jerusalem of America and in Yadin Yadin from Rav Dovid Feinstein, ztz’’l. A partner at the Wall Street law firm of Carter Ledyard & Milburn LLP, Raphael Grunfeld is the author of “Ner Eyal: A Guide to Seder Nashim, Nezikin, Kodashim, Taharot and Zerayim” available for purchase at www.amazon.com/dp/057816731X and “Ner Eyal: A Guide to the Laws of Shabbat and Festivals in Seder Moed” available for purchase at www.amazon.com/dp/0615118992. Questions for the author can be sent to [email protected].
