Parashas Re’eh includes the instructions for treating a Jewish servant, an eved ivri (Devraim 15:12-15:18). The final verse of the passage tells the master that once the six years of work are up, he should not feel distressed at releasing the servant: “Do not consider it a hardship to set your servant free, because his service of six years is double that of a hired hand.”
Commentators offer a range of interpretations concerning the “doubled” nature of the six-year service. The Gemara (Kiddushin 15a), cited by Rashi on the Pasuk, explains that the eved ivri works by day and even by night since his master has the right to wed him with a non-Jewish maidservant, and the resultant children belong to the master.
Another explanation, which is mentioned by Ibn Ezra, Rashbam, Chizkuni and others, is that while the servant works a full six years, a regular laborer works only for three years. This time period for a laborer is noted in Yeshayahu (16:14), where the Pasuk mentions that “three years, as the years of a laborer.”
The Torah Temimah explains that Chazal did not interpret the Pasuk in this way, because the pasuk is describing why a servant should receive extra payment. Although it is true that he worked longer than an ordinary worker, he also received payment for those extra years, since the master’s initial payment for the eved ivri is for a full six years (unlike payment for a regular laborer, which is proportional to the period of his employment). The extra value of the eved ivri is therefore not the number of years he works, but the fact that his employment includes the day and the night.
While eved ivri is not found today, laborers are, and many laws of laborers are related to the idea of the eved ivri, the Jewish servant. In the present article we will reflect on these laws, and specifically on the laws of an employee who wishes to quit his job.
Does an employee always have the right to quit? What if he is under contract? Does he need to compensate the employer for losses? Does the length of the employment agreement make a difference? These questions, among others, are discussed below.
Quitting One’s Job
The Pasuk in Vayikra (25:42), explaining the release of slaves at Yovel, says: “For they are My servants, whom I took out of the land of Egypt; they shall not be sold as slaves.”
This Pasuk teaches us the value of freedom. We are servants of Hashem—Hashem alone. Even the slavery that extends beyond the first six years must ultimately come to an end, at the Yovel year when all Jewish servants and their families are released (Vayikra 25:40). The special relationship between Hashem and the Jewish People does not allow for Jews to be permanent slaves.
Even outside the framework of slavery, the Torah sages knew that the working schedule of a regular day laborer can resemble slavery (an observation that receives multiple expressions today). Therefore, they derived (Bava Metzia 77a) from the same Pasuk that a worker has the right to quit his job whenever he wishes to do so: His employment agreement does not prevent him from leaving his job. “They are My slaves—and not slaves of slaves.”
This basic halachah is ruled by the Shulchan Aruch (Choshen Mishpat 333:3) as follows: “After the worker has started his work, and he wishes to leave his job, he can do so. Even if he has received his wages and he does not have a means of repaying the employer, he may quit his job and the money becomes a loan.”
A Kinyan is Binding
The right of workers to quit does seem to place employers at risk. This is especially true of skilled workers who have become so common in modern times. Given high levels of specialization, and intense competition between companies and employers for quality labor, the matter of quitting laborers can be a very thorny issue. Yet, as we will see, it has its limitations.
First and foremost, it is not clear that the basic right to quit applies even to workers under contract. According to the Ritva (Bava Metzia 76), when a legal kinyan is made between the parties, workers do not retain the right to leave their jobs at will. This, of course, will make a huge difference: employers will be able to secure operational stability by making a legal kinyan with workers.
The Shach (Choshen Mishpat 333:14), however, disputes the ruling of the Ritva, citing the Rivash that a worker always retains the right to leave his job, no matter what kinyan was made. The Mabit (1:132) sides with the Ritva, and moreover writes that had the Rivash seen the ruling of the Ritva, he would surely not have disputed his opinion.
The Pischei Teshuva (333:5) cites a number of later authorities who agree with the Ritva that a kinyan, properly executed, is binding upon workers. He adds that in his own opinion this is the halachic ruling, and this is also the common custom in contemporary batei din.
Workers Under Contract
Does signing a contract, as common today for many skilled workers, constitute a legal kinyan from which workers will be unable to resign according to these poskim?
Several Poskim have addressed the concept of a contract, and many have ruled that a signed contract has the status of a legal kinyan. This is based on the fact that the common custom is to see contracts as binding instruments, giving them the status of a situmta—a binding contract by force of common custom.
Thus, Shut Maharashdam (Choshen Mishpat 380), Shut Maharshach (Vol. 3, no. 8, concerning an agreement among creditors), Shut Beis Yehuda (Vol. 1, no. 23 & 40, concerning a type of promissory document), Shut Chasam Sofer (Choshen Mishpat 66), and others—and in their wake contemporary authorities—agree that a contract has the status of a kinyan situmta.
Based on this, it follows that somebody who works under a legally binding contract is unable to quit at will, but has to follow the procedure outlined in the contract (see Rav Tzvi Shpitz, Hilchos Shecheinim 16:5). It is interesting to note that Rav Ovadya Yosef (Shut Yabia Omer, Vol. 6, Choshen Mishpat 6:6) raises the possibility that a signed contract is fully binding, yet does not give a concrete ruling on this.
Where no procedure is noted, it stands to reason that sometimes the default procedure will be the law of the land if that is the accepted custom.
Causing a Loss to the Employer
Although a worker is generally free to quit his job at will, he is not free to quit when quitting will cause a tangible loss, known as davar ha’aved. An example is a caterer who was hired to provide meals at a function, who wishes to back out at the last minute. It is forbidden for such an employee to quit his job (Choshen Mishpat 333:5). Another example is a teacher in a school who quits in the middle of the year, in cases where there is nobody to replace him.
The Maharit (Yoreh De’ah 50) goes so far as to rule that in cases of a clear and unavoidable loss, Beis Din can force the worker to return to his job and prevent him from quitting. However, most authorities reject this approach, and rule that even where a concrete loss is involved, the worker cannot be forced to work against his will (see Pischei Teshuva 333:4).
If a worker decides to quit his job anyway, the employer is within his rights to promise the worker extra money and better terms, and to ultimately pay him according to the initial agreement. He can also hire other workers, and pay part of their salary from the salary owed to the first worker.
When the case is not a davar ha’aved—for example there is sufficient time to order from another caterer or find a replacement teacher—yet the replacement is more expensive than the original, the employee does not have to compensate the employer, and he has the right to receive his already earned salary in full.
However, if the worker is not a laborer (po’el) but rather a contractor (kablan)—somebody who works in his own time, and is responsible for the final product rather than for hours worked—he will be responsible for the added costs of the employer, which the employer can deduct from his salary. A caterer is usually in the latter category.
The halachos pertaining to liability for losses when a worker quits a job are complex, and are also contingent on the reason for his quitting his job (see Rema, Choshen Mishpat 333:4). A competent authority should be consulted for concrete cases.
Working for More Than Three Years
The Rema (Choshen Mishpat 333:3) rules that it is forbidden for a worker to hire himself out as an employee for more than three years. Beyond three years, we move from the definition of a worker to that of a slave, thereby invoking the above instruction: “They are My slaves—and not slaves of slaves.”
This, too, seems to present a significant challenge to modern employment patterns, where it is common for people to sign a contract to work for more than three years. Does this constitute a halachic problem?
Shut Chavas Yair (140) considers a case in which a Chazan was employed by a certain community for three years, after which he contracted with them to remain in the community for another ten years. The contract was sealed with a tekias kaf, a handshake that gives halachic authority (similar to an oath) to the agreement. After some time the Chazan wished to leave for a new community. Could he do so?
The first claim raised by the Chazan was that it is not permitted to work for more than three years, so that the agreement is null and void, allowing him to quit his job at will.
The Chavas Yair dismisses this claim. He explains that many authorities (including Tosafos, the Mordechai, and others) write that there is no prohibition against remaining in a single job or occupation for over three years, and cites the Shach (333:17) that this appears to be the halachic ruling. This will mean that in general, the restriction of the Rema is not binding halachah, and it is permitted to work continually for more than three years.
In addition, the Shach (16) writes that the prohibition against employment for over three years only applies to somebody who has the wherewithal to refrain from this. For somebody who is poor and destitute, it is permitted to sell oneself into slavery—and so it is all the more so permitted to enter into a labor contract for more than three years. This rationale might be generally applicable today, since for many occupations somebody who stipulates that he will work for no more than three years is one who is experiencing difficulty in finding a job.
Another consideration mentioned by the Chavas Yair is that the prohibition of not working for over three years is surely no more than rabbinic, while the tekias kaf invokes a Torah prohibition.
A worker generally has the right to quit his job as we mentioned. Does he have the right to change jobs, moving from one employer to anther?
This question is discussed by the Pischei Teshuva, who notes that according to some authorities (he cites Maamar Kadishin and Ateres Tzvi) where the worker wishes to simply change employers, he cannot quit at will, since he is not claiming his freedom but only changing masters.
Yet, as the Pischei Teshuva notes from Shut Chavas Yair and others, the general consensus seems to be that even when an employee wishes to quit one job for another, he is in his rights to do so. This, too, is a part of his basic freedom—we might call it freedom of occupation—to choose between jobs. While similar, in a certain sense, to slavery, an employer is not, at the end of the day, a full master.