Lesson # 272 (part five) •Labor Law
We continue with the sub-topic:
Employer Will Suffer an Irreparable Monetary
Loss by the Employee's Resigning
1. The employer may resort to trickery to retain the services of the original employee. For example, he may offer the original, employee a higher wage to induce him not to resign, and the employer may then renege and not pay the higher wage. Or if he has paid it before the employee agrees to continue in the employ and complete the work, the employer can bring a law-suit to recover the money that he paid. The employer can recover the excess money he paid since it is in the nature of robbed funds in the hands of the employee.
2. The employer may hire a substitute worker at the expense of the resigning employee, even if it means not paying the original employee anything and paying the substitute employee all of the wages allocated for the original employee.
3. The employer may hire a substitute worker and if necessary pay him more than he agreed to pay the original employee. The excess funds may be sued for. Also if the employer happens to have any of the assets of the original employee in his possession, he may apply such amount to pay the substitute employee the amount in excess of the agreed amount with the original employee. There is also an opinion that the employer can only levy on tools of the original employee that he, the employee, was to use on the job.
4. If there were other workers to substitute for the resigning employee and the employer did not hire a substitute worker, the resigning employee is not liable for any losses suffered by the employer.
5. If there are no workers found to substitute for the resigning employee, then the employee must pay to the employer all of the losses suffered by the employer resulting from the resignation of the employee.
There is an opinion that the liability of the resigning employee is limited to those situations where there were other workers available when the employer hired the employee. But if there were no other workers available at that time, and the employer cannot find any substitute worker at this time, the resigning employee is not liable. If there is no loss of money but rather inconvenience, as, for example, not delivering the band to a wedding, the resigning employee is not liable to the employer.
If the employee works without compensation, he may resign at any time, even if the employer will suffer irreparable loss by the resignation and demand to be paid from this time forward. But he may not resign even when he is offered wages if the employer cannot obtain any other worker to take his place. If he does resign and if there were other workers available when he commenced work, the employee is liable for full damages to the employer.
The Employer Fires the Employee
When the employer fires the employee, there is a
difference in the compensation, if any; to be paid to the employee,
depending on whether the firing was before he showed up for work, or after
he showed up for work, which is equivalent to his commencing work. Once the
employee shows up for work he is deemed to have commenced the employment
whether it was for a single day or as long as many years; the results are
the same. I shall first discuss the applicable halacha where the employer
fires the employee before he shows up for work and then the applicable
halacha where the employer fires the employee after he shows up for work.
These laws apply only if the employee does not suffer monetary loss by the employer canceling the work. But if he suffers monetary loss, the employer must pay damages suffered by the employee as herein set forth:
1. When the employer hired the employee, the employee could have gotten other jobs, and now; when the employer reneges, the employee does not find anyone who will hire him. The compensation to be paid is the minimum wage for the term of the employment, or the period for which the employee cannot find work, whichever is shorter.
2. If the employee does find other employment but at a lower wage, and when he was hired there were other employers who would have paid the wage for which the employer hired him, the employer must make up the difference.
3. If the work at the second employer is more difficult physically and when the employer hired him there was other comparable work available and now there is only more difficult work available, the employee has several options: he may accept such other work if he receives additional compensation from the new employer, he may refuse such more difficult work even with extra compensation, or the first employer may consent to pay the employee the extra wages to do such more difficult work.
4. If there were no other work available to the employee when the employer hired him, then the employee does not suffer monetary loss when the employer reneges on the employment. The burden of proof is on the employee to show that such work was available. Should the employee fail to so prove, the employer takes a HESSETH oath and is free of obligation to the employee. MTC
We will continue next week with the situation of the employee being considered to have started work and is THEN fired.
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