Shabbat Parashat Chukat| 5765
Ask the Rabbi
Question: I was hired by a school to work as a speech therapist. They promised that I would be paid for a minimum of 12 hours. During the course of the year, some students left the school, and now there are a couple of hours a week during which I have nothing to do. The school continues to pay me in full. Is it right for me to be taking the full pay?
Answer: It is challenging to answer questions of what is best to do, as most of Choshen Mishpat (monetary law) deals with rulings of one’s rights and outright obligations. But we cannot turn down such a noble request. We will present halachic background, and you should know better than we how to act best in your case. Should a disagreement arise in the future, this response, which is based on partial information from one side, cannot be used to bolster either side.
There are a few Talmudic precedents about a worker who was hired for a job, which became (partially) superfluous. Technical considerations help determine who should have foreseen the situation arising and stipulated what to do in such a case, and this affects who “the winner” is (see Bava Metzia 77a). But in this case, it seems that it was stipulated that the school would pay you even if there were no longer a need for twelve hours of work, as has happened and they are doing. However, in the gemara’s parallel cases, there are two things the employer can do to minimize his damage of having to pay for work he does not receive. We will now discuss for your consideration if either is appropriate for you.
Halacha considers one’s pay to consist of different elements. Part of the pay is for the toil of doing work of the given level of difficulty. As a consequence, in a case that a person gets paid without having to work, we reduce the amount that corresponds to the toil, and he receives s’char batala (wages of one who is idle). The gemara (ibid.) points out that some people do not like being idle, in which case nothing is removed from their salary.
The gemara (ibid.), discussing a day worker who finished the job before day’s end, says that the employer can instruct him to do other work during the remaining time if the work is not more difficult than that for which he was hired. The employer can also find an alternative employer to provide work to compensate him for the unused time (Rama, Choshen Mishpat 335:1). There is even an opinion that he can give the worker harder work if he pays for the extra toil (ibid.).
Thus, the school could plausibly ask to reduce your salary to s’char batala orask you to do other jobs in your spare time if they are not more difficult. (Difficulty may not be limited to exertion but could include factors like embarrassment about doing things which people of your professional standing are not accustomed to do (see ibid. and Bava Metzia 30b)). Your stipulation might preclude these possibilities, as might the standard market practice, which is a crucial factor in commercial agreements. You are in a better position to ascertain the matter than we are. It is likely that by remaining quiet on the subject, the school has relinquished its rights (mechila)to make these demands (see Tosafot, Bava Metzia 66b). (In order to use the logic of mechila, you need to know that someone of sufficient authority is aware of the situation and accepts it.)However, if you want to be particularly noble you could consider volunteering to either reduce your wages a little or help the school in other ways.
However, it is logical to say that this case is different from the gemara’s discussion of uncompleted work. Here, you continue to work at your job, just that you have more free time than expected (see Tosafot Harosh, Bava Metzia 77a). There is reason to claim that under such circumstances, the legal and perhaps the moral obligation to take a cut in salary or take on additional responsibilities is diminished. Much depends on the scope of the reduction of your workload.
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