Embed Size (px)
Citation preview
32 I JEWISH ACTION Winter 5772/2011
The more things change, the morethey stay the same. Dilemmas in em-ployer-employee relationships arewidely discussed in the Talmud. OneTalmudic discussion is particularly rel-evant. Among other rules of fair deal-
ing, the Mishnah teaches: “It is forbid-den to paint a person.” The Gemara(Bava Metzia 60b) asks:
What is the case of painting a per-son? Like the instance of an old [white-haired] slave who dyed his hair and hisbeard. He approached Rava and said tohim, “Buy me.” He [Rava] replied [withthe words of the Mishnah in Avot]: “Let
poor people be among the members ofyour household.” [The slave] approachedRav Pappa bar Shmuel, who bought him.One day [Rav Pappa bar Shmuel] said tohim, “Bring me some water to drink.” Hewent, and his hair and beard becamewhite [again]. He said to [Rav Pappa barShmuel], you see that I am older thanyour father.
This passage teaches two importantlessons. First, as the Mishnah states andthe Gemara explains, a worker is not al-lowed to misrepresent his qualifica-tions when he “sells” himself to theemployer. Even if the misrepresenta-tion is passive (after all, the slave neverasserted he was a young man), and evenif the qualification is indirect (older
By Asher MeirCoverStory
Rabbi Dr. Asher Meir is a senior lecturer ineconomics and business ethics at theJerusalem College of Technology.
Starting in late 2007, the United States,together with much of the world, suffered asteep recession. While the economy began to recover in
2009, growth has not translated into new jobs. Two years intothe recovery, unemployment in the US is still over 9 percent.
America’s employment problems have not spared the frumcommunity, and many are unemployed, underemployed, orworried about losing a job. This issue, like all issues vital toour lives, has a Torah aspect: the situation involves employers,employees and job seekers in delicate situations that raise se-rious ethical questions. I get frequent questions from people inall these situations, some of which I will relate here.
The Ethics of Hiringand Firing
Winter 5772/2011 JEWISH ACTION I 33
people can be excellent workers, butwhite-haired men in the time of theGemara were less qualified for the hardphysical tasks usually demanded ofhousehold servants), it is forbidden togive a misleading impression.
Rava teaches us another lesson. Herefused to buy the slave because hepreferred to hire poor free men, fulfill-ing the mandate to make the poormembers of your household. Thus, hir-ing workers is not just a question offinding qualified people for the task;often there is an additional aspect ofhelping out needy people through pro-viding employment.
Q: I have a loyal employee whom I’mreluctant to let go, but business is soslow that he is just not earning hiskeep. Should I let him go or keep himon and endure the loss?A: I think it is a wonderful credit to ourcommunity that the most commonworker-related question that reachesme is not from job seekers who are try-ing to find out how far they can pushthe envelope on their resumes, butrather from employers who feel a pow-erful ethical obligation to keep on em-ployees at all costs, even when itconstitutes a hardship for the business.Is there any halachic limitation on fir-ing workers?
While there are some authoritieswho rule that an employee has somekind of right or ownership of his job,Rabbi Dr. Aaron Levine, a”h, who wasmy mentor, concludes that “normativehalachah rules that the employee-at-will has no legal claim for tenure,”while stipulating that “the employee-at-will is entitled to notice” (Case Stud-ies in Jewish Business Ethics [NewJersey, 1999], p. 250). “Employment atwill” means that an employer is al-lowed to fire a worker at any time forany reason or even for no reason—butnot for an illegal or religiously invalidreason. That is the Choshen Mishpat(monetary) aspect of the question.
In normal economic times, and fornormal work situations, that is oftenalso the best advice. In my experience,when an employer is unsatisfied withthe employee it is a sign not only thathe is not the best worker for the job,but also that this is not the best job for
the worker. The good of both parties isthat the worker should move on andfind the position that is best for him.
In a few places Chazal liken findinga job to finding a spouse (Moed Katan18b; Bereishit Rabbah, Vayetzei 68:4).Sometimes after a few dates the youngman or woman just reaches the realiza-tion that this match is not bashert. Thesame can happen in the workplace.
However, there is an additional as-pect to this question, one which is usu-ally secondary but which has specialimportance in today’s job market. Inthis question, as with so many others,the Choshen Mishpat aspect does notexhaust what the Torah has to sayabout the issue. Alongside the ChoshenMisphat rule there is also a Yoreh Deahaspect—the tzedakah aspect.
• Giving a job to a needy person isconsidered a fulfillment of themitzvah of tzedakah. If you have aworker who is not worth his keepbut who may have difficulty findinga decent job elsewhere, there aremany reasons to maintain thatkeeping him on should be very highon the tzedakah priority ladder.• Giving tzedakah through employ-ment is the highest form of charity.“The highest level [of charity] of allis to steady the hand of the Israelitewho falters, and give him a gift, or aloan, or make partnership or offerhim work, in order to strengthenhis hand so that he shouldn’t haveto ask” (Rambam, Matnot Aniyim10:7). In this way the employeemaintains his self-image and hisstanding in the community.• Your worker should be high onthe list of charity recipients. TheTorah commands us to give a gemi-lat chesed loan to “the poor of yourcity” (Exodus 22:24). Chazallearned from this a concentric cir-cle of preferred charity recipients:“A member of your nation and analien, your nation comes first; apoor person and a rich person, thepoor person has precedence; a poorrelative and the poor of your town,the poor relative has precedence;the poor of your town and the poorof a different town, the poor of yourtown have precedence” (Bava Met-
zia 71a). A person whom you haveworked closely with over a long pe-riod of time should be considered“the poor of your town” and, otherthings being equal, should behigher on the priority list than ananonymous stranger who is receiv-ing tzedakah through a donation toan organization.
This is a very cost-effective form ofcharity. While your contribution orsacrifice is only the difference betweenwhat the worker is worth and what hegets paid, which is probably only afraction of his salary, his benefit may bethe entire amount of the pay, depend-ing on job market conditions. So youget much more “bang for the buck” inthis way.
Of course, this does not mean firingworkers is always a problem. Some-times workers are not only unproduc-tive but counterproductive. In this casehiring may not be such a cost-effectiveway of giving after all. Furthermore, ifit is obvious that the worker is unnec-essary, then keeping him on may not
34 I JEWISH ACTION Winter 5772/2011
even achieve the goal of not shaminghim. If business is weak, the employermay himself not be making enoughmoney to be giving charity generously.But if you are considering discharginga worker who will have a difficult timefinding another job, then it is worthasking yourself if keeping him or heron until the job market improves maynot be the best fulfillment of your char-ity obligation.
Q: Many businesses want to hireonly currently employed workers,but it is we unemployed who reallyneed the work. Can I word myresume so it sounds like I amstill employed?
Q: I am being “downsized.” Can I in-dicate on my CV that I quit so that Iam not tagged as jetsam?
A: As we learned from the Talmudicpassage cited above, the general rule isthat one may not make false or evenmisleading statements on a resumeor job application, but the application ofthis rule may involve ethical challenges.
Here I will focus on one particulararea: description of the conditions ofdischarge.
The sad truth is that getting fired isa compound burden. Most obviously itinvolves the loss of earnings. The dis-charged worker now has to look for
work in a very slack job market. Buteven within that slack job market, un-employed workers are at a disadvan-tage. Employers prefer to hire someonewho already has a job.
Job applicants may be tempted tohide the fact that they are unemployed.However, there does not seem to beany heter for this. The employer’s pref-erence for an employed worker is sub-stantive, and discriminating againstunemployed workers is generally legal.Actively concealing your unemployedstatus would be little different than thehoary slave darkening his hair. In fact,it would be worse: having dark hairdoes not signal any particular age, asyoung people occasionally have whitehair, and even older people occasion-ally keep their youthful color. So dye-ing your hair is really a matter ofappearance, as opposed to employ-ment, an objective standard demandedby the employer.
What can be done? Human re-source professionals advise to fill thathole in your resume with employmentrelevant activities, such as volunteerwork, training, or consulting.
Another related question involvestermination. Often there may be an ad-vantage in terms of benefits for aworker who quits to declare himself asfired, while there is a job market ad-vantage for a worker who is fired to de-clare himself as quitting.
Here there is more room for ma-neuvering. There is not really a sharpline between firing and quitting; it isusually a simple matter for a worker tomake himself so unproductive that hegets fired, or for an employer to makelife so difficult for an employee that he
quits. It is quite common for employerand employee to negotiate the terms ofa separation, including what the tech-nical term for the termination will be.To the extent there is no legal issue (forexample, defrauding the governmentregarding unemployment benefits),there is room for negotiation on thetechnical description of the termina-tion that will appear on the resume. Ofcourse if the applicant is asked aboutthe terms of his separation, he mustnot conceal any relevant details.
The two aspects can be combined.If you have a worker who needs to belet go, perhaps he can be given an ex-tended notice. The cost of the extrafew months of salary over and abovethe worker’s productivity could be justthe tzedakah contribution he needs tobe able to find a new job from a posi-tion of strength. If the worker is notdoing anything, it is not accurate to de-scribe him as working; but if he contin-
ues his previous duties, even to asomewhat reduced extent, this is not amisleading description as long as thejob description accurately conveys thefunction the worker continues to fulfill.
Getting back to work in this “recov-ery” requires plenty of resourcefulnessand good fortune, perhaps more thanin any other recovery in memory. Get-ting back to profitability is also an on-going challenge, but both require strictadherence to Torah law and values. Jobapplicants need to be scrupulous abouthonesty in presenting their qualifica-tions, while employers contemplatingdownsizing would do well to study notonly their contractual Choshen Mishpatobligations but also their charitableYoreh Deah ones as well. g
Job applicants maybe tempted to hidethe fact that theyare unemployed.However, there doesnot seem to be anyheter for this.
TOURO COLLEGE AND THE ORTHODOX UNION
are proud to announce the
DR. BERNARD AND SARAH RIVKAH LANDER
FULL TUITION SCHOLARSHIPfor outstanding NCSY graduates
For information about theDr. Bernard and Sarah Rivkah Lander Leadership Scholarship
Please contact Judy Rieser: [email protected]
Sarah Rivkah Lander
. Bernard and Sarah Rivkah Lander Leadership ScholarshipDrFor information about the
d Lander nar. Ber& Drr.”Sarah Rivkah Lander
. Bernard and Sarah Rivkah Lander Leadership ScholarshipFor information about the
”d Lander
. Bernard and Sarah Rivkah Lander Leadership ScholarshipFor information about the
Phone:
Contact:
Please contact Judy Rieser: jrieser@tour
opportunities at our Lander CollegesFor more information about educational
299,exts718 252 7800Phone:
NY 11230ooklyn,,Br1602 /OURO COLLEGET
Admissions/LASThe Office of Contact:
Please contact Judy Rieser: jrieser@tour
opportunities at our Lander CollegesFor more information about educational
o College Los AngelesT
[email protected] ext. 55400,
o CollourroTTo
32099
venue JAAv1602 Admissions/LAS
o.eduPlease contact Judy Rieser: jrieser@tour
opportunities at our Lander CollegesFor more information about educational
o College Los Angeles
[email protected] ext. 55400,
o College South in Miami Beach
:o College South in Miami Beach
Or visit our website:Email:
Phone:
ouro College is an equal opportunity institution.T
.tour wwwOr visit our website:.eduolasadmit@tourEmail:
299,.exts718-252-7800,, Phone:
ouro College is an equal opportunity institution.
[email protected], ext. 85155
o CollourroTTo
.eduo.tour
32099,,
ouro College is an equal opportunity institution.
[email protected], ext. 85155
:o College Los Angeles
