Eliyahu was enjoying a relaxing summer after an intensive year of learning. He spent time with his family, learned a few hours each day in the community beis medrash, and worked sporadically when the opportunity arose.
One Motzaei Shabbos, he received a call from Mr. Stone, the director of a day camp. “Are you available on Tuesday to accompany the camp on a trip?” Mr. Stone asked. “We need a couple of extra hands.”
“Yes, I’m available,” said Eliyahu. “I’m taking it easy this summer.”
“Great,” said Mr. Stone. “Please be at the camp by 8 a.m.; we’d like to head out by 8:30.”
Tuesday morning, Eliyahu got up early. He davened at the first minyan, ate quickly, changed his clothes, and biked over to the camp. He was surprised to find the camp in a calm state, with no buses in sight. He walked over to the director’s office.
“Good morning, Mr. Stone,” Eliyahu said. “I’m here for the camp trip.”
“Oh, I’m sorry,” Mr. Stone said apologetically. “They predicted rain later today, so we had to cancel the trip. I meant to notify you, but somehow it skipped my mind.”
“That’s unfortunate,” said Eliyahu. “I got up early and rushed to get here.”
“Please excuse me,” said Mr. Stone. “This has never happened before.”
“I was also looking forward to the day’s income,” added Eliyahu. “I’m not working much this summer.”
“I’m willing to compensate you for coming here early in the morning,” said Mr. Stone, “but don’t see the need to pay you for the day’s work; you weren’t planning to work otherwise.”
“Once we arranged it, I think you owe me for the day,” said Eliyahu, “whether I had other potential work or not.”
“Fair enough,” said Mr. Stone. “Let’s consult Rabbi Dayan.” He called Rabbi Dayan on speakerphone and explained the situation.
“Your case touches on a fundamental point in the law of employees,” said Rabbi Dayan.
“Really?” exclaimed Eliyahu. “I’d love to hear!”
“The Gemara [B.M. 76b] teaches that if a person arranged verbally with a worker, without a formal contract, and cancelled the job – the worker has only rightful complaints,” explained Rabbi Dayan. “However, if the worker went to the place of work, and was unable to work due to the negligence of the employer – the employer has to pay him partially – approximately half – for the day’s work, k’poel batel.” (C.M. 333:1; Taz 333:1)
“Why does it depend on whether the worker went to the place of work?” asked Mr. Stone
“Tosfos and the Rosh explain that the real issue is whether the employer caused the employee damage,” explained Rabbi Dayan. “Can the employee still find alternate work, or did he lose alternate job opportunities meanwhile?”
“When the employer cancelled the job before the worker set out, he usually can find other work,” continued Rabbi Dayan. “Nonetheless, he has a rightful complaint for the hassle. However, when the worker already went to work – by the time he realizes that he cannot work there, it’s usually too late to procure other employment.”
“What if the worker had no other job options anyway, such as here?” asked Mr. Stone. “In this case the employer caused no loss?”
“According to this approach, the employer would not have to pay – even if the worker already set out,” replied Rabbi Dayan.
“However,” he continued, “the Ramban and Rashba explain that even if the worker did not have another job option, once he set out to work the employer is financially responsible to him. Heading to the place of work is considered as having begun the job, which commits the employer to his financial liability. If the worker finds alternate work to replace the income, though, the owner is relieved of this responsibility.” (C.M. 333:2)
“Who do we rule like?” asked Eliyahu.
“The Shulchan Aruch rules according to the second opinion,” answered Rabbi Dayan. “Once the worker sets out to work, the employer is financially liable, even if he had no alternate job options.” (SM”A 333:6; Shach 333:7)
“It seems strange that heading to work is considered as beginning to work,” said Mr. Stone. “I travel an hour to work each day, but punch the clock only once I arrive!”
“You raise a valid point,” said Rabbi Dayan. “In fact, some achronim seem to limit this halacha to a per-diem worker who is hired for the entire day. Going to his assigned destination is included as part of his work hours.” (Avnei Nezer C.M. 52:4)
“Nowadays, when travel is usually not included in the work hours,” continued Rabbi Dayan, “one can question whether to consider coming to the workplace as beginning to work. Nonetheless, it seems the sages treated heading to work as beginning of work for this purpose. Therefore, the employer is liable for approximately half the amount if the worker does not find replacement employment.” (See Hayashar V’hatov, vol. 10, pp. 196-197)
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 firstname.lastname@example.org. 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 email@example.com.
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