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October 31, 2014 / 7 Heshvan, 5775
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Reluctant Reference!


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Mr. Lazer ran a successful restaurant. He employed close to twenty people: a chef, cooks and a baker; waiters and waitresses; supply and maintenance personnel; and two cashiers. At the end-of-year accounting, something seemed amiss. There was a small but noticeable discrepancy in the cash receipts of his enterprise. In the following semi-annual account, a similar discrepancy was noted.

“What explanation can there be?” Mr. Lazer asked his accountant.

“Could it be that one of your workers is ‘taking home’ a little bit?” suggested the accountant. “You might want to keep a tighter tab on the money.”

Mr. Lazer implemented certain security measures and began watching his workers more carefully. Sure enough, at the end of the year the discrepancy was significantly reduced. Mr. Lazer continued watching his workers and began to suspect a particular one, Mr. Shuker, though he had no solid basis yet with which to confront him.

As the year wore on, Mr. Lazer noticed additional suspicious behavior on the part of Mr. Shuker, which strengthened his hunch. He began tracking Mr. Shuker carefully, and, one day, finally caught Mr. Shuker red-handed pocketing some money.

The following day, Mr. Lazer called him into the office and informed Mr. Shuker that he was releasing him, on account of his dishonest behavior.

Mr. Shuker protested slightly. “It was just this one time, and only a small amount,” he argued.

“Money has been missing for two years now, and I suspect that it’s linked to you,” Mr. Lazer told him bluntly. “Be thankful that I’m just releasing you and not pressing charges against you for the past also.”

Mr. Shuker remained silent. He packed up and left.

Shortly afterward, Mr. Lazer was talking with a neighbor, who ran a catering business on the other side of town. “I interviewed someone today for a position,” the neighbor said. “He mentioned that he had worked with you for a number of years, and recently left.”

“Who is that?” asked Mr. Lazer.

“Mr. Shuker,” said the neighbor. “He said that he wasn’t earning enough with you, and was looking for a higher paying position.”

“I see,” said Mr. Lazer, as thoughts raced through his head. “What should I say?” he wondered. “Should I protect Mr. Shuker? My neighbor? Play dumb? Spill the beans? I need to buy some time!”

“I’d like to talk with you, but need to run now,” Mr. Lazer said to his neighbor. “We’ll pick up the conversation tomorrow.”

“OK, be well,” said his neighbor.

Mr. Lazer pondered the situation. “Perhaps Rabbi Dayan can give me some guidance on this issue,” he said to himself. He called Rabbi Dayan and explained the uncomfortable circumstances.

“What are my responsibilities here?” asked Mr. Lazer. “What sort of reference should I provide?”

“The issue of references is a very delicate one,” replied Rabbi Dayan. “On one side stands the prohibition of lashon hara, negative talk that can harm the prospective employee. On the other side stands the requirement to protect the prospective employer from harm or loss.”

“Is there really such a requirement?” asked Mr. Lazer.

“Yes, based on the mitzvah of hashavas aveidah,” answered Rabbi Dayan. “Just as there is a mitzvah to return lost items to a fellow Jew, there is a mitzvah to protect him from potentially harmful situations. There is also a prohibition, lo ta’amod al dam reiecha – ‘Do not stand aside when your fellow’s blood is shed’ – if you see him facing danger. [C.M. 426:1; SM"A 426:1] The Chofetz Chaim explains at length that this also includes a requirement to protect him from financial loss or a potentially harmful partnership.” (Be’er Mayim Chaim, Rechilus 9:1)

“How do we balance this requirement with the prohibition of lashon hara?” asked Mr. Lazer.

“The Chofetz Chaim [Hil. Rechilus 9:1-2] stipulates five conditions,” answered Rabbi Dayan.

“First, you must not assume in haste that the potential worker or partnership is bad, but must consider carefully that it is, in fact, bad.

“Second, you must not inflate the situation more than it actually is. For example, you cannot say he has been stealing for two years, but rather that you caught him stealing once but suspect he might have been doing so for a while.

“Third, you must intend only for your neighbor’s benefit to spare him from loss, not out of hatred for your former worker.

“Fourth, if it is possible to bring about the benefit without revealing the bad – such as by simply saying, ‘I have reservations about recommending him’ – you should do so.

“Finally, if actual damage will come to the worker, e.g., he has already entered an agreement and signed a contract, and the employer will break it off unilaterally, there are further restrictions.” (See Hil. Rechilus 9:5-6)

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 subscribe@businesshalacha.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 ask@businesshalacha.com.


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