Latest update: April 19th, 2013
For a number of years Mrs. Baum hadn’t worked but instead stayed home watching her young children. As their youngest child approached pre-school age, she decided to enter the work force again. Half a year before she planned to return to work, she began sending out resumes, networking and speaking with potential contacts.
However, the job market was not easy. Having been away from work for a few years did not make it easier. After a few months of effort and numerous interviews that went nowhere, Mrs. Baum was finally called back for a second interview with a promising prospect.
A week before the interview, she arranged with one of the local young women, Rachel, to babysit for the day. However, early that morning Rachel called. “I’m sorry for calling now,” she said, “but I will not be able to make it today.”
“What do you mean, you can’t make it?!” asked Mrs. Baum.
“A close friend who I haven’t seen for years told me last night that she will be popping into town today,” Rachel said. “We want to get together.”
“That’s not enough of a reason,” said Mrs. Baum with exasperation. “Do you realize I have a job interview today? I need someone to be here! You can’t do this to me today.”
“I’m sure you can find somebody else,” said Rachel.
Mrs. Baum made a few phone calls to some other people who had babysat for her before. However, no one was available to work.
Mrs. Baum called Rachel back. “I made a few phone calls, but can’t find anybody,” she said. “I really need you to come.”
“Sorry, but it’s just not worth it for me,” said Rachel.
“What if I offer you double pay?” asked Mrs. Baum. “Will you come then?”
“Give me a minute,” said Rachel. “I’ll call you right back.”
A minute later, Rachel called back. “For double pay I’ll come.”
“Well, then get over here as soon as possible,” said Mrs. Baum. “It’s already getting late.”
Ten minutes later, Rachel came over. Mrs. Baum rushed to her appointment.
At the end of the day, when Mrs. Baum returned, she took out money for the initially amount agreed.
“That’s not enough,” said Rachel. “We agreed on double pay.”
“What I gave you is what we really agreed on,” said Mrs. Baum. “You unfairly changed it when I had no choice in the matter.”
“You had a choice,” said Rachel. “You could have stayed home.”
“That wasn’t really a choice,” said Mrs. Baum. “For months I’ve been looking for a job and finally landed a promising interview!”
“But once you agreed to pay double, you agreed,” said Rachel. “I only came to work with that understanding. You’re cheating me!”
“If anything, you tried to cheat me,” replied Mrs. Baum. “I’m going to have my husband ask Rabbi Dayan about this.”
Mr. Baum called Rabbi Dayan and explained the situation. “Does my wife have to pay the amount initially agreed or what she was forced to offer later?”
“In this case,” answered Rabbi Dayan, “your wife does not have to pay the higher amount she agreed to under duress.”
“Why is this?” asked Mr. Baum.
“A regular employee paid by the hour or day has the legal right to cancel his employment in many situations,” answered Rabbi Dayan, “although this is often wrongful and the employer has rightful complaints against him.” (C.M. 333:3; Pischei Choshen, Sechirus 11:1)
“However, an employee cannot retract in a situation where he will cause the employer a significant loss, davar ha’aved, by leaving the job in the middle,” continued Rabbi Dayan. “In such a situation, the employee is able to take measures to ensure that the job is completed. He can either trick the employee into finishing the job by agreeing to additional salary or he can hire other, more costly, workers and deduct the difference from the salary still in his hands.” (C.M. 333:5-6)
“What if my wife already paid the babysitter double?” asked Mr. Baum. “Could she demand to return the extra?”
“Yes,” answered Rabbi Dayan. “Since the babysitter had no right to retract from the job under these circumstances and demand additional pay, any additional amount is theft on her part.” (Aruch Hashulchan 333:19)
“What if it was possible to find another babysitter?” asked Mr. Baum.
“If it was possible to hire an alternate babysitter,” said Rabbi Dayan, “then she would have no right to trick her or hire at her expense. If she would agree to pay more in this case, she would have to pay the higher price that she agreed to.” (Rama 333:5)
Mr. Baum thanked Rabbi Dayan and explained to Rachel what he had ruled.Rabbi Meir Orlian
About the Author: Rabbi Meir Orlian is a faculty member of the Business Halacha Institute, headed by HaRav Chaim Kohn, a noted dayan. To receive BHI’s free newsletter, Business Weekly, send an e-mail to email@example.com. For questions regarding business halacha issues, or to bring a BHI lecturer to your business or shul, call the confidential hotline at 877-845-8455 or e-mail firstname.lastname@example.org.
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