Lesson # 273 (part six) •Labor Law

We continue with the sub-topic: The Employer Fires the Employee
However, if the employer fires the employee after the employee shows up for work, it is deemed that work has commenced and the employee is entitled to compensation for the period worked and the minimum wage for the balance of the period of employment. Once it is deemed that the work has commenced, even for a moment, and the understanding between them is for a long period of time, for example, five years, the laws of the prior sentence apply. If the employer then tells the employee that he has no work, the employer must compensate the employee even if there was no other work that the employee could have obtained at the time that the employer hired him. If the situation is such that the employee cannot work because he was hired to plow in a field and the field is inundated, making it impossible to plow, it is as if the employer has told the employee not to continue to work. The same applies if the employer hires the employee as a delivery man to go to a destination close by to obtain an object for delivery and when the employee gets there, there is no object to be delivered. The employer must pay the employee the wages of an unskilled idle worker who has just been hired. However, if the distance to which the employee must go to obtain the object for delivery is afar distance from his point of origin, and there is no object there, the employer must pay the employee the agreed-upon wages.

If the delivery man is an independent contractor, and he sent the delivery man with a letter to deliver to Shimon, and the delivery man went there and did not find Shimon there, the employer must pay the wages of the delivery man whether the distance is close by or far away. Or he was hired to deliver medicine or a gift to a sick person and the sick person dies or recovers before the delivery man makes delivery, he must be paid the agreed-upon wages. In these cases the employee was hired to travel to do the job and differs from the situation where the employee is hired to irrigate a field and through an act of God the field was watered, asby rain. In the former case the essence of the job is traveling and this was done; it is not the delivery man's fault that the desired result was not achieved. In the latter case the essence of the job is to irrigate the field, and this the employee cannot do.

In a 13th-century case, the employee was hired to accompany the employer on a journey. The employer died in the midst of the journey and it was held that the estate of the employer must pay the employee for the entire journey. In another 13th-century case, a husband hired a messenger to go the husband's estranged wife to try to convince her to return to her husband. The messenger went to the wife and she refused his overtures to return to her husband. It was held that the husband must pay the messenger for his work; it is not his fault that the desired result was not achieved.

Force Majeure Affects the Relationship
All that is said regarding the liabilities of the parties one to the other does not apply if the inability to perform results from force majeure.

For example, there is a death of a close relative for whom the employee must mourn and cannot work, or the employee or a member of his immediate family becomes seriously ill. In such situations the employee is paid the same way that he is paid if the force majeure prevented the employer from providing work for the employee, that is, he is paid to the time of termination of the work and then paid the minimum wage for the balance of the term of employment.

Regarding force majeure as it applies to the obligations of the employer, (1) if both the employee and the employer knew of the force majeure situation and the employer did not inform the employee not to come to work, then the employer is free of obligation. Similarly, (2) if neither knew of the force majeure situation and the employer did not tell the employee not to appear for work, the employer is free from obligation. (3) If only the employer knew or should have known of the force majeure situation when he hired the employee and the employee did not know, the employer cannot rely on force majeure to excuse his failure to inform the employee not to come to work; the employee will be entitled to compensation as any other wrongfully fired employee. If the employer did not provide the work because of force majeure, the employer is not even designated a person lacking faith. The employer hires the employee to plow his field and the employer knows that the field is flooded and impossible to plow and yet hired the employee to plow the field, the employer cannot rely on force majeure to excuse his liability.

However, if the employee knows of the situation (for example, it had been raining for many days and it was to be expected that the field was flooded) or should have known, even if the employer also knew; or both reasonably did not know, (for example, when the employer hired the employee the weather forecast was for fair weather and overnight there was an unexpected storm that flooded the field), it is considered force majeure, and the employer is not liable to the employee. The employer is not liable even in those situations where there was other employment available when the employee was hired by this employer, If an independent contractor agrees that he will complete the work and will be responsible even if force majeure intervenes, he will not be held to this agreement if the force majeure is so very remote that it could not have been contemplated by the parties. Beth Din will have to decide if the particular force majeure was within the scope of the contractor's undertaking.

The employer hires the employee to plow his farm and then rain descends all night making it impossible to plow, the employer is not liable. Or the employee is hired to come the next day to irrigate the employer's field and the river dries up at noon in the midst of the work of the employee, the employer is not liable to the employee if this river ordinarily does not dry up or the employee knows that the river may dry up.

If people have to evacuate a town because of air pollution, this is force majeure and the employee loses out.

Next sub-topic relates to Teachers, Other Religious Functionaries, and Artisans

The subject matter of this lesson is more fully discussed in volume IX chapter 333 of A Restatement of Rabbinic Civil Law by E. Quint. Copies of all volumes can be purchased via email: orders@gefenpublishing.com and via website: www.israelbooks.com and at local Judaica bookstores. Questions to quint@inter.net.il

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