Halachic Musings
By Rabbi Yair Hoffman
The babysitter or playgroup was recommended by a friend’s friend. Three weeks in, however, you are dissatisfied. The conversation goes something like this.
“You can’t just cancel now, midstream! How am I going to replace the income?”
“What midstream? I have no contract here, and I am dissatisfied.”
“You need to ask a rabbi. This is my parnassah!”
This conversation happens hundreds of times each year in Jewish communities across the world. Is there halachic validity to the idea that one cannot cancel an arrangement if the other person would incur a loss?
Is there a difference between the case of a babysitter and the case of a playgroup? What about a day-care center? Also, is there some length of time that was committed to if the terms were unstated?
These halachos are generally found in the laws of hiring workers—in chapter 333 of the Choshen Mishpat section of Shulchan Aruch.
Briefly, the halachah is that a person who commits to hiring a worker may not cancel the job on the worker if there was an action (a kinyan or its equivalent) that officially finalized the hiring (see Bava Metzia 75b–76b).
What might constitute an act equivalent to a kinyan? Beginning work or even traveling to the worksite is considered as a kinyan equivalent in this regard.
If the employer decides to back out before the actual beginning of work, the employee has no monetary claim, but he or she does have a moral complaint (yesh alav taarumos). This is codified in Shulchan Aruch 333:1.
There are times, however, when the employer would have to pay if he caused the worker a lost business opportunity. There are two operative principles that determine whether there is a financial obligation:
Is there no opportunity now for the worker to find other work (see Tosfos 76b)?
Was there a different job available that the employee could have taken had he not been hired by this person?
If the answers to these questions are both yes (there is no opportunity now, and the employee could have taken a different job), then there would be a financial obligation upon the employer to make it up to the employee (see Shulchan Aruch 333:2).
Rav Nissim Karelitz applies these laws to our case of hiring a babysitter. He rules that if a person hired a babysitter to watch his children, and he made no condition as to how long he had hired her, he may change his mind even in the middle of the year. He is not compared to an employer who reneged on the hiring of a worker where he would be responsible for payment (see response Chut Sheini, Likutei Dinim, page 18). He rules that the arrangement between a babysitter and the family hiring her is not considered long-term but rather temporary and on an hourly or day-to-day basis.
He writes that this is true even though nowadays people generally hire a babysitter for the entire year. If, however, payments are made by the employer every month, then the term is considered for the entire month, and he must pay the babysitter for the entire month.
All this applies only if there was no length of time that was discussed. If there was a stipulation as to the duration of the babysitting term, then the employer may not change his mind for the duration without incurring a financial obligation. Similarly, if the employer gave postdated checks for the next few months, he is obligated for the period that he had given postdated checks.
Difference Between Playgroup And Babysitter
Rav Nissim Karelitz does not raise a distinction between a babysitter and a playgroup in his responsum on the matter; the distinction is cited in his name by the author of a work titled Darchei Mishpat (page 243). The author writes that a maon yeladim, a day-care center, is considered like schirus for the entire year and the customer would thus be obligated financially to make restitution to the person.
This is only if the playgroup had incurred damage by virtue of the reneging, such that the playgroup had other customers who are no longer available. Playgroups often have waiting lists and a maximum number of children that they take in for the year.
There are a number of questions that arise here. What defines a day-care center or playgroup? When, halachically, is a babysitter only considered a babysitter and not a maon yeladim, a day-care center? What if the babysitter watches three kids for some hours and two kids at other times? These questions may not be so simple. A rav should be consulted to resolve these questions.
There is also another issue that may impact the question of financial obligation. New York State and New Jersey are both generally considered “employment at will” states, which means that a private-sector employer can essentially hire and/or fire as he or she pleases and a discharged employee usually will have no legal recourse even when the discharge is unfair or unreasonable. Does the law then generally affect the “minhag” of how halachah would view the underlying arrangement? Some batei dinim do take this into account while others may not.
As mentioned earlier, there is something called taarumos—a moral obligation. It is always a good idea to make sure that people are not upset with you, and it is always worthwhile to mediate solutions to everyone’s satisfaction.
The author can be reached at Yairhoffman2@gmail.com.
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