Question

You wrote in a previous article (Vayikro) that if I couldn’t send my child to a private kindergarten because of the health situation, I should pay half of the amount that the teacher lost due to the closure since there are three opinions how much I am required to pay and one should follow the middle opinion. Does this mean I have to pay exactly half of her normal salary or do we take into account the fact that she didn’t work and I can pay less than half of the usual amount?

Answer

Your question is well taken because the Gemara (Bovo Metsiyo 76B) brings a beraissa which states that if a farmer hired help and because of his negligence he was unable to provide the employees with work, he is required to pay them in full. However, the Gemara states that he doesn’t have to pay the full amount that they would have received if they had worked. The amount that he has to pay is the amount that the workers would have been willing to accept for not having to actually work. This is called by the Gemoro sechar po’eil boteil – the wage of a worker who does not work.

The Gemara further states (Ibid 77A) that Rovo paskened in a similar situation that the employer had to pay his workers in full even though they didn’t work, where it was the employer’s negligence that caused them to have no  work. The Gemara asks why we don’t deduct anything since they did not actually work. The Gemara answers that Rovo was discussing workers who were porters in Mechoza (the place where Rovo was the rov) and they preferred to work. Thus, the Ramo (335, 1) rules that rabbeim are paid in full in such a situation because they would rather work.

There is an issue among the poskim whether there is a fixed rule to determine how much we pay as a po’eil boteil. The Taz (333, 1) writes that he found several early poskim who ruled that the amount is half the full salary. Thus, if someone was hired to work at fifty dollars an hour, if he didn’t have to work he gets twenty-five dollars an hour. This implies that we don’t take fully into account a person’s individual situation or his profession. This is quite difficult in view of the examples previously cited of the porters of Mechoza and rabbeim.

Furthermore, it seems that other poskim do not agree with the Taz. For example, both the Sema (333, 7) and Shach (333, 8) cite the Tur that we evaluate how much the individual who was hired for this job would have wanted to receive in case he did not need to actually work. This definitely implies that they were unaware of an opinion that there is a uniform formula for determining how much to pay an idle employee.

Furthermore, the Rashbo (1, 987) writes that we reduce the worker’s salary by a small amount which is a far cry from paying only half the full amount.

The Radvaz (2, 793) writes that he studied all that was written by the poskim and concluded very specifically that there are two determinants: the individual and the nature of the job. He says that for people who are strong and energetic we reduce their full salary by a small amount whereas for people who are weak or lazy the reduction is much greater. Similarly, if the task does not require heavy physical labor then the reduction is small, whereas if it entails difficult physical labor the reduction is much greater.

All the above seems to indicate that the consensus opinion is not like the Taz. It also seems that the poskim who are cited by the Taz might agree with the others in theory but felt that since often it is difficult to determine precisely how much the employee deserves, they just laid down a uniform rule.

However, the consensus is that one has to determine each individual circumstance and there is no general rule or uniform amount.

One of the leading contemporary poskim (Rav Soriel Rosenberg in Hayoshor Vehatov 4, page 38) wrote that perhaps the Taz applies to a self-employed person who takes on jobs on an individual basis since he can afford to at times skip a job and still earn a living. However, people who have a regular job generally require about their full salary since it is their livelihood. He concludes that the amount that an employee is willing to reduce his salary is an individual question and beis din has to examine each case on an individual basis.

A beis din (Mechon Lehoro’o of Monsey in Mekabtsiel 11, page 76) wrote that there are six factors beis din must take into account: 1: The nature of the job. As we mentioned earlier the greater the physical toil the larger the reduction. 2: The size of salary. People who earn more have more to lose and will be less prepared to accept a reduction in salary. On the other hand, people who earn less are more likely to need their full salary. 3: The length of time one is sidelined. People are less inclined to opt for a reduction in salary for a longer period of time. 4: The time of the year. In the summer people are more inclined to take vacation, so they use the time off to take a vacation. This is also a factor in your sheilo since part of the time was before Pesach when woman are more interested in a day of vacation, 5: The economic status. One who is poor and needs his salary desperately is less inclined to agree to a reduction in salary. 6: The nature of the work, as we cited above from the Radvaz.

In conclusion, you are correct that often the employee is not entitled to his full salary if he or she did not work. However, the size of the reduction must be determined individually, and takes into account many factors. We should note that this discussion is to determine the full amount that the employer might owe and then we have to apply what we wrote earlier in our article on parshas Vayikro to pay half of the adjusted full amount.

 

 

 

 

 

 

 

 

 

 

 

 

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