I am responsible for building the Succa for our chassidus. As many chassidim come to daven with the Rebbi and everyone shakes lulav and esrog in the succa and comes to the tisch, we have to build a huge succa. I hired a group of teenagers at an hourly rate for each worker and they began building. They build fine but are not very fast. Then I heard of another crew that is more experienced and skillful and builds much quicker. May I hire the second group and just pay the first group whatever I owe them for their work up until now or am I committed to continue with them?
Let us begin by rephrasing your question in a halachic manner so that we can apply the relevant halachos. When you hire a worker and make up that you will pay by the hour, or for that matter any other time period, your worker assumes the status of a po’ail. This is in contrast to one who is paid by the job who is called a kablan. Had you hired the crew and agreed to an amount that you would pay for building the entire succa, regardless of the amount of time it takes them to build the succa, the workers would have the status of a kablan, which is governed by a different set of halachas.
The second important point that you mentioned is that your workers had already begun building the succa. This is important since the Gemara (BM 76B) says that the halacha would be different if you would have released the workers before they began working.
The case which is discussed by the Gemara is where an owner of a field hired workers and, after they merely started going to their job, he realized he didn’t have work for them and wanted to cancel their employment. The Gemara rules that unless the fact that there was no work was due to unforeseen circumstances, the field owner must pay them basically (we will explain what “basically” means later) whatever he committed himself to pay, unless, they could use the time that became available to them to perform another paying job that would cover their loss of wages. According to many Rishonim (Ramban, Rashbo and others) this is the halocho, and this is the approach ruled by the Shulchan Aruch (333, 1). The reason is that going to a job is an act of kinyan known as hascholas melocho – beginning to work.
The reason we call the act which signifies beginning to work an act of kinyan is because it creates a mutual obligation, like any other act of kinyan. When one buys a field and performs an act of kinyan he obligates himself to pay while the owner thereby passes ownership of the field to the buyer. Similarly in cases of employment, when the workers begin to work they, thereby commit themselves to perform the entire job they were hired to do while the employer commits himself to pay them whatever he said he would pay for the job.
While it is true that sometimes the employer has to pay workers even if he released them before they began working, the rules governing that payment and the nature of that payment are different from the payment and the nature of the payment for a worker who was released after he began working. That payment is required only if the workers had turned down a different job which no longer is available when they were later released, and the nature of that payment is that it is payment for causative damages.
However, if an employer releases a worker after he began working, he has to pay even if the worker did not forfeit another job by accepting the employer’s offer. Furthermore, the nature of the payment is payment for employment. The distinction manifests itself in a number of ways. For example, when you pay for employment you must pay with cash but when you pay for damages you may pay with goods of equivalent value.
In order to derive the rules governing this kinyan it is important to understand the source for this kinyan. Whereas the sources for other acts of kinyan are derived by the Gemara from pesukim, there is not a word in the Gemara telling us the source for this kinyan. As we mentioned earlier, the entire source is a ruling by the Gemara in a specific instance of hascholas melocho.
There are two schools of thought. The approach of the Ritva (Kiddushin 47B, BM 99A) is that the kinyan was established by the Rabbonon in order to prevent losses that would result if one of the parties reneges on his commitment.
The other approach is that beginning to work is an action which somehow qualifies as a Torah kinyan. There are several approaches as to how this is achieved. One approach was suggested by R. Yitchok Elchonon (Nachal Yitzchok (39, 17) and the Ohr Someach (Sechirus 9, 4). They point out that we find in the Gemara several instances where a worker is halachically equivalent to an immovable object. One of the methods for acquiring an immovable object is by means of chazoko, an action that shows ownership (such as locking the door). The ruling of the Rambam is that even an act where the new owner just derives benefit from the immovable object (such as lying on the ground he wishes to acquire) is also considered an act of chazoko and enables the buyer to acquire the immovable object.
Thus when a worker begins working and the employer begins benefiting from the worker, one can derive the kinyan of beginning to work from the pasuk in Chumash which is the source for the act of kinyan of chazoko on immovable objects.
The Chazon Ish (BK 21, 32) and others suggest a different approach for considering beginning to work a Torah kinyan. They also derive the kinyan from a kinyan that is effective in acquiring immovable objects. However, their approach is that the kinyan is not chazoko but kesef, giving money. The money in this case is the obligation that falls on the employer to pay for the worker’s work, an obligation that begins when the action of the worker obligates the employer to pay him the amount of one pruto.
The Acharonim use this approach to explain the ruling of the Gra (333, 36) that beginning to work does not affect a kinyan when the worker is a volunteer, since the employer never became obligated to pay anything. If one follows the other approaches, there is no reason a volunteer does not become obligated to fulfill his original commitment. Therefore, it seems that the Gra also followed this approach.
Thus, we see that since this crew began building, you are obligated to continue using the crew that you hired and if you hire another crew you will still be obligated to pay the first crew.
We have to consider how much you will have to pay the first crew. Basically, you have to pay the salary you committed yourself to pay, since the kinyan obligated you to do so. However, the salary that you will need to pay is adjusted to take into account the fact that the workers do not actually work. The Gemoro and Shulchan Aruch write that each situation must be judged individually. For example, the Gemara (BM 77A) rules that for workers who would rather work there is no reduction. However, the Taz (333, 1) brings from several early Rishonim, including Rashi, that the amount is half of their salary. This is not the accepted practice. (This was very pertinent at the beginning of the corona pandemic.)
Some (Rav S. Rosenberg in Hayoshor Vehatov 4, page 38) differentiate that a worker for whom the job is his livelihood obviously would not be amenable to taking half his salary and remaining idle, since he needs money to support his family and half his salary will not suffice. However, for teenagers who are just working to earn extra spending money perhaps, the Taz is pertinent.
Another factor to take into account in computing the amount you will have to pay is the availability of alternative employment. If alternative employment is available you only need to pay the difference in wages, if any, between the amount you originally committed yourself to pay and the amount they would earn (CM 333, 2) if they take an available job. Even if they decide not to take another job you will be free from paying them anything more than that difference.
Another important point to mention is that in case before hiring them you did not describe exactly what was involved in building your succa, even if the other succa that they could build is significantly more difficult to build that would still qualify as alternative employment. The reason is because you could have given them a very difficult succa to erect since the only job description you gave at the time they were hired was that they are to erect your succa.
Until now we have dealt with the monetary effect of your terminating their employment. However, we must also consider the moral issues that are involved. There are in fact two issues. The first is that the Gemara says that one who is released from employment can have tar’umos (complaints) about his former employer’s behavior even if he has no monetary loss. The Rosh writes that the basis for the employee’s complaint is because he was forced to expend extra effort to find alternative employment. The Shach (333, 1) deduces that if alternative employment is readily available there are no grounds for a complaint. Therefore, you have to consider employment conditions in your community to evaluate this factor.
The second moral issue is that you will be called a mechusar amono, an unreliable individual. Even though the Gemara never mentions this issue in the context of employment agreements, it was obvious to the Sema (333, 1) that this is the case. Even though there are no monetary ramifications from being a mechusar amono, nevertheless the Rabbonim look at such behavior with criticism (ein ruach chachomim noche haimenu). Some poskim maintain that the community should embarrass such people in order to prevent them from acting as a mechusar amono. (These issues are discussed at length in our sefer Mishpatei Yosher Vol 1.)
It is possible to avoid being classified as a mechusar amono if you assuage their feelings. However, this needs to be done and cannot be ignored.
In conclusion: There are two issues to consider. As far as monetary compensation is concerned, if there are other jobs available you will only need to pay the difference, if any, between the amount they would have earned by you and the amount they could earn at an alternative available position. If they cannot find alternative employment, the amount you have to pay is the amount you originally committed yourself to pay adjusted to take into account the fact that they will not have to work, which according to some is half of their salary.
There also are two moral issues that must be taken into consideration: tar’umos and mechusar amono.