Aharon Klein was working as the lifeguard at a day camp. His contract ran through the middle of August.
Two weeks before camp was over, Aharon got a call from his mother. “Mazel tov,” she said. “Your sister Miriam in Israel had a baby boy! Thank G-d, everyone is doing well.”
“Wow! That’s wonderful!” exclaimed Aharon. “What about the bris?”
“We’re trying to make arrangements to go,” replied Mrs. Klein.
The following day, Mrs. Klein said: “We plan on flying to the bris in two days. B”H it will be on Sunday, so we have to get there before Shabbos. Do you want to come?”
“Sure!” said Aharon. “I’m not going to miss the bris!”
“What about your work?” asked his mother.
“I’ll tell the director that I have to leave early,” said Aharon. “He’ll have to get someone else to fill in.”
Aharon immediately told the camp director that he wanted to stop working early so that he could fly to the bris.
“I’m very happy for you and your family,” said the director, “but I can’t let you go without first getting someone else. You know that swimming is one of the most essential parts of the camp day.”
“I need to book the ticket already,” said Aharon. “I’m not missing the bris in any case. I’m sure you can find someone else.”
“I’ll try, but it might not be easy,” said the director.
The director sought a replacement lifeguard, but all the potential candidates were working elsewhere. He finally found a professional lifeguard who agreed to work for the remaining week, but at a significantly higher salary.
“I found someone,” the director told Aharon as he left, “but it will cost us much more.”
“Sorry, but I don’t want to miss the bris,” said Aharon.
The director called Rabbi Dayan and asked:
“Can I deduct from Aharon’s salary the differential in wage for the remaining week?”
“Once a worker begins working, he is committed to his employer,” replied Rabbi Dayan. “Nonetheless, the Gemara (B.M. 10a, 77a) teaches that a per-diem worker (po’el) can retract even in the middle of the day. This is because G-d declares Israel to be His servants alone, whereas an unretractable work commitment is a form of bondage” (C.M. 333:3).
“Therefore, since the worker can retract, he is entitled to the full salary for the time he worked, even if it will cost more to hire an alternate worker” (C.M. 333:4; See Chazon Ish B.K. 23:2 and Pischei Choshen, Sechirus 11:[1] regarding giving sufficient notice).
“However, this applies only to regular work. When the work is time-bound and entails a potential imminent loss (davar ha’aved), the worker may not retract. In this case, if an alternate worker costs more, the employee is liable for the differential in cost of the replacement worker” (C.M. 333:5).
“Rama (C.M. 333:5) cites from the Terumas Hadeshen (#329) that the services of a household servant, whose employer cannot manage without him and is liable to suffer loss in various matters, is also considered davar ha’aved. In truth, Terumas Hadeshen remains inconclusive on this, so that Maharashdam (#119) writes that if the servant already received his full pay and is in possession, the employer cannot demand that he return the differential. Shach (333:23) concludes that it depends on the Dayan’s evaluation of the particular circumstances.
“Responsa V’shav Hakohen writes that it is considered davar ha’aved that the servant is not allowed to retract, even though it is not clear that the owner will lose, since one cannot cause even questionable loss, but it is not davar ha’aved regarding his paying the differential” (see Nesivos and Pischei Teshuvah 333:8).
“Aharon’s work is certainly considered davar ha’aved, though, even if it doesn’t entail direct financial loss to the camp,” concluded Rabbi Dayan. “The camp cannot function properly without a lifeguard, so that if Aharon backs out, he is liable for the differential in salary, and the director can deduct it from his pay.”
Verdict: If an essential worker quits prematurely, he is liable for the differential in salary of a replacement worker.
