Parshas Tetsave-A Babysitter who Fails to Pick-up her Charge On-time
I get home from work at five o’clock in the afternoon. Since my daughter finishes kindergarten at two o’clock, I hired a babysitter to pick-up my daughter at two, and to watch her until I return at five. It turned out that some days the babysitter only came at three or even four in the afternoon. The kindergarten kept my daughter until the babysitter arrived, but charged me for the extra hours. Those extra hours cost more than the amount I pay the babysitter for those hours. Am I allowed to deduct this additional amount from the salary of the babysitter?
First we must classify the situation. The babysitter is your employee. Therefore, we are involved with the laws of sechirus poalim i.e. employer-employee issues. The laws of sechirus poalim include rules for an employee who was hired to work and then backed out of his commitment. Your babysitter actually did even worse than that, since in the usual situation the employee informs the employer but in your case the babysitter didn’t even do that. She simply didn’t show up, relying on the kindergarten to keep your daughter in the interim.
The laws governing employees who back out of their commitment to work contain specific laws for workers whose job is critical for their employer, known as a dovor ho’ovaid. The examples that are discussed in the Gemara are a band that was hired to play at a chasuna, and a worker who was hired to remove flax from dyeing fluid. If no one will perform these tasks the employer will suffer a loss.
Similarly, in your situation, you had to hire someone to watch your daughter since you could not leave her unattended. The Gemara (Bava Metsiyo 76) writes that the employer has the right, in this type of situation, to hire a replacement at the expense of the employee. The Gemara calls this socher aleyhem. Thus, had your babysitter called you at five to two and informed you that she would be arriving late, you could have called the kindergarten and arranged for your daughter to stay longer at the babysitter’s expense. In your situation, this happened automatically. However, the same rules apply. Therefore, we must just examine the rules of socher aleyhem in order to answer your question.
The Gemara states that the liability of the employee is capped at his “wages.” However there are three opinions what the Gemara means when it says the employee’s “wages.” The opinion of Rashi is that it is the amount the employee who quit already earned and is currently owed by his employer. Thus the employee never has to pay money out of his pocket, but he will forfeit some of the salary that he has earned but hasn’t been paid yet. The second opinion is that the employee can be assessed even for money that he was paid for the job but not more. The third opinion, which is the opinion of the Shulchan Aruch and is the authoritative opinion, is that he can be required to pay the entire amount that he stood to earn from the job.
For example, if a band was hired for two thousand dollars to play at a person’s chasuna and the band canceled a week before the chasuna and the replacement band that was found charged three thousand dollars, the first band would be required to pay one thousand dollars since that is the additional amount that the mechutanim had to pay due to the cancellation by the first band. According to the first two opinions the band that quit would not need to pay anything because they never earned any money from this job.
Returning to your question, you can deduct the additional amount you needed to pay the kindergarten from the monthly salary of the babysitter. Thus, you lost nothing as a result of the babysitter’s late arrival.