Lesson # 271 (part four) • Labor Law
The Employee's Right to Terminate the
There are times that the resigning employee will be compensated to the time of termination and forfeit the balance of his wages. Sometimes the resigning employee will have to compensate the employer for losses suffered by the employer. Sometimes the employee will not be compensated to the time of termination nor have to pay damages to the employer. That which has been said about a worker having the right to resign his employment at any time also applies to independent contractors, absent any agreement to the contrary. The employee has the right to resign from his employment even if he has already been paid all of his wages to the end of his employment, provided that he has or will have the wherewithal to repay the amount that will become due to the employer for the employee failing to complete his employment. But if it appears that there is very little likelihood that he will ever be able to repay the balance, he may not resign his employment, for this would be akin to robbery.
As is shown in the next lessons, if the employer will suffer irreversible loss by the resignation of the employee, the employee may not resign his position with the employer. However, if there is force majeure, the employee may resign even if the loss is irreparable.
Examples given in the codes include hiring a driver to deliver a band for a wedding and the driver does not appear and it is not possible to get another driver. Or a tailor who is hired to sew suits before a Holy Day and he does not do the work and no one else is able to sew the garments. Or the employee is a servant or maidservant in the home of the employer. Many employees cannot continue their running of the household without the servant.
More on Early termination of employment
Based on this there were rules established in some communities that an employee would not undertake employment for a period exceeding three (or in some communities five) years, whether by under- standing or by agreement. This became a norm in some of the jobs that these communities offered its religious functionaries, such as a rabbi, cantor, sexton, scribe, or teacher of children. The theory is that in excess of three (or five) years an employee becomes more like a slave than an employee.
Most communities did not adopt these rules, since there is an obvious difference between a slave and an employee. Even in the communities that adopted these rules, if a person was very poor and could not find employment except for a period of time exceeding these time limits, he could do so. There was a difference as to the rights of the parties under these long-term understandings and agreements. The rabbi could resign his position at any time even within the agreed-upon term in his understanding with the community. But he should not do so and if he did, he is known as a man lacking in faith. If he did resign and he received either wages or expense and house allowances in advance, he must repay the unexpired sums not yet earned. But at the conclusion of his term he may seek employment elsewhere.
On the other hand, a community has no right to discharge their rabbi or other religious functionaries even after his term expires, unless there is a valid cause as found by a Beth Din.
The Employee Resigns the Employment
There is a difference in the law of damages depending on when the employee leaves the employment. If the employer hires a worker to appear for work on a specific day and the worker does not show up, the employer has only a "grievance" against the employee, for the employee can tell the employer to seek other workers. Such grievances are not compensated in money damages. There is authority that the employee can be designated one who is lacking faith. The grievance is that the employer must now go through the trouble of finding another employee. Thus, if the employer can find other workers without much bother, he does not even have a grievance against the employee. There is no compensation that one pays as a result of being designated as a person who is lacking in faith.
If the employee did not do the work because of force majeure, the employee is not even designated a person lacking faith.
The employee who resigns stands in a favorable position in relation to the employer. For example, the employee is to work eight hours to receive $8 for the work, or $1 an hour. The employee resigned after four hours, and his resignation will not cause irreparable damage to the employer. The employee will receive $4, although the employer may have to pay another employee $5 to complete the work. If the new employee will work the remaining four hours for only $3, the resigning employee will receive $5 for the four hours that he worked.
Employer Will Suffer an Irreparable Monetary
Loss by the Employee's Resigning
But the law is different if the employer will suffer a monetary loss by the employee not fulfilling his undertaking immediately to do the work. Under such circumstances, the employee may not resign from the employment! For example, the employee is hired to remove flax from the soaking baths and if the flax not be so removed, the flax will become unusable, or a teacher is hired to teach schoolchildren Torah. The right of the employee to resign does not exist. <MTC>
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: firstname.lastname@example.org and via website: www.israelbooks.com and at local Judaica bookstores. Questions to email@example.com