Nate’s company downsized; he was laid off. “It’s mishamayim, from Heaven,” he said. “B’ezras Hashem, something else will turn up.” He sent out his resume and received several job interview invitations.
He met with the human resources department of Double Inc., which told him they would be in touch in the coming weeks. Meanwhile, he met also with First Co., which offered him a position the day after the interview. Nate negotiated some details of the salary and terms of employment, and gave his verbal agreement to the position.
“Please meet with Mrs. Sanders in the HR department to sign the contract and complete the hiring process,” Nate was told. Mrs. Sanders was on vacation for the week, though, so he made an appointment for the following week.
During the week, Double Inc. called to say it was interested in making Nate an offer. The terms were roughly on par with the offer from First Co.
“Thank you for your offer,” Nate said to Double, “but I already got a similar offer with another company. I made an appointment to sign there next week.”
“Let me see what we can do for you,” said the person from Double Inc. “Until you sign, you’re under no obligation to the other company.”
A senior officer called back a short time later. “We checked your references and are very eager for your services,” he said. “We’re willing to enhance our offer significantly, provided that you come sign tomorrow.”
“I appreciate the offer and would like to consider the issue,” replied Nate.
Nate sat down and compared the pros and cons of each job. There was no doubt that the enhanced offer from Double was significant. He wasn’t sure whether it was ethical, though, after having arranged to sign with First Inc., even though practical circumstances delayed his signing.
He decided to consult with Rabbi Dayan on this issue.
“Is there any ethical issue in accepting the enhanced offer of the second employer?” asked Nate.
“There are several halachic issues to consider,” answered Rabbi Dayan, “but if the difference is significant it is not unethical to accept the second offer.”
“Generally, for a transaction to be halachically binding, there is a need for a kinyan, an act of acquisition,” explained Rabbi Dayan. “However, a verbal employment agreement is binding, even without a kinyan, once the employee began working. If one party backed out before the work began, the other party has a ‘rightful complaint’ [tar’omes] against him for the inconvenience that he caused.”
“In addition, if the party retracted without good basis, he is considered mechusar amana – lacking trustworthiness,” added Rabbi Dayan. “This is true also for someone who retracted from a verbal agreement to a transaction without good basis. However, if there is a significant reason, according to many authorities he is not considered mechusar amana.” (C.M. 204:7,11; Pischei Teshuva C.M. 207:5; Sma 333:1; Aruch Hashulchan 333:1; Pischei Choshen, Sechirus 11:1[2])
“What about the halacha that an employee is allowed to retract without penalty, even after beginning work?” asked Nate. “This certainly should be no worse!”
“That halacha is rooted in the idea that Jews are servants only to Hashem and cannot be irrevocably bound to others,” replied Rabbi Dayan, “Therefore, it does not apply to an employee who intends to continue working but wants to retract and charge a higher rate. Similarly, according to some authorities, it doesn’t apply to a worker who wants to switch jobs from one employer to another for a greater salary.
“Furthermore, since signing a contract is likely considered a kinyan situmta, there is a minority opinion that he cannot retract, other than in accordance with terms of contract that he signed.” (Rama C.M. 333:4; Pischei Teshuvah 333:4; Shach 333:14; Pischei Choshen, Sechirus 11:1-3)
“In your case, though, where you haven’t signed yet,” concluded Rabbi Dayan, “many authorities do not even consider it mechusar amana if there is a significant difference.”
