[Avodah] not working on chol hamoed

[Chana Luntz]

> 

RDI writes: 
> Obviously a Jewish employer can't require (or even allow) a Jewish 
> employee to work on shabbos, but your arguement above seems to 
> imply that the Jewish employer is obligated to give _paid_ 
> vacation. 

I don't believe that the employer is required to give paid vacation.
But I also don't believe that anyone would describe requiring the
employee to take chol hamoed as unpaid leave as "heavily penalized".
Thus my assumption is (and I agree it is an assumption) that the
employee asked for it either as part of her regular vacation or if not
as unpaid leave and that request was refused.  And not only was it
refused, but that more serious consequences were threatened by the
employer should she fail to show (loss of job, more substantial loss of
pay - ie for days that she had indeed worked, loss of an otherwise
deserved promotion or something of that nature).

 (Use the example of Yom Tov instead of Shabbos, and the 
> case is clearer.)  In this case she is getting paid, not using up 
> any allocated vacation time, and also not working.  Perhaps a beis 
> din would consider that a reasonable knas, but the halacha doesn't 
> necessarily impose it.
> 
> As a practical issue, if she is in danger of losing her job for not 
> coming in (as opposed to simply losing a day's pay, which is 
> exactly what she is mechuyav in) then there is a practical problem: 
> if she refuses to accept payment for that day, she effectively 
> informs on herself resulting in her being fired. 

Exactly.  And if one holds that it is in fact assur to work (eg again
think of shabbas, or if you prefer, yom tov), then that is what you are
requiring.

 But that doesn't 
> remove the CM issue of accepting payment for work she didn't do.

I am not sure that is right, see below.

> Daniel M. Israel


RMB writes:

> She is being forced to choose between being "greatly 
> penalized" (which I am assuming is a hefseid merubah, since 
> that's pretty much a translation, though I don't know the 
> penalty) and being forced to violate geneivah.
> 

See I am not totally sure it can be described so easily as geneivah.  An
employer does not have a carte blanche to require an employee to do any
and every form of work he/she can possibly think of.  For example, if my
employer tells me to do something that is illegal (eg according to dina
d'malchusa dina) and I refuse to do it, am I engaging in geneiva vis a
vis my employer? (let us say there was nothing else that I could do at
the time for my employer instead).  In many countries, in fact, what the
employer here has required the employee to do, ie violate their
religious beliefs and practices, would indeed be against the law (it is
certainly against international law and various of the UN treaties).
But I am no expert in Israeli law, and I do not know if it is in fact a
violation of the law to require work on chol hamoed (I do know it is a
violation of the Israeli law to require work on shabbas).  So let us say
there is no dina d'malchusa aspect. Still, we have here a situation
where it would seem (according to these poskim) that the employer is
requiring the employee to act in violation of the halacha.  And the
employer is not giving an option (again my assumption) to take the day
as unpaid leave and not show.  Is it really geneivah if the employee
shows but does not work?   

> Is geneivah in such a case huterah or dechuyah?
> 
See my instinct is that a better way to understand it is that it is not
geneivah at all.  An employer is entitled to require certain legitimate
things from an employee.  He/She is not entitled to require illegitimate
things and these cannot be considered to be part of the employee's work
no matter how often he tries to write them into the contract.  To the
extent that the actions are illegitimate, then there is no genivah in
the employee not performing them.  If the employee can legitimately find
other things to do for the employee, they may be required to do them (in
this case, maybe make up the time after hours on non chol hamoed days),
but if he/she cannot, then effectively it seems to me that the scope of
the employment has been limited to, in this case, showing up (ie giving
up the time with her family to come in).

If anything the geneivah I see here is not so much about not working for
her pay, but about genivas daas - because one can assume that the
employer is thinking that because the employee showed up she is working.
That I think is an issue.  On the other hand, I struggle to see how
threatening a hefsed meruba is a legitimate action on behalf of the
employer (is that not geneiva in reverse - the employee has presumably
legitimately worked all the rest of the time, having her salary docked
for more than the days of chol hamoed, or losing her job or losing a
promotion to which she would otherwise be entitled seems to me to
involve the employer taking away from the employee something to which
the employee is entitled, why is that not geneiva, or actually gezela?)
The assumption here seems to be that an employer has carte blanche to
punish an employee for asking for time off - whereas my understanding of
the simple halacha of employer/employee relationships is that we
acknowledge that employees are not avadim, and are free to take off even
in the middle of  a day and a job, and just lose the pay for the time
they take off (unless the employer thereby suffers a hefsed meruba,
which it would seem clear is not occuring here).  So it seems to me that
in this particular instance, the employer can better be understood as a
ganav and in order to deal with listim and ganavim, a certain degree of
subterfuge is permitted if there is no other way, and I struggle to see
any other way here.  If the employee can get away with saying, OK I will
show, but I won't work, then that is clearly a better option.  But I am
again presuming that the big stick would continue to be waived by the
employer if he was told of this fact.

> I ask because being forced to violate geneivah is also an 
> undesirable. I'm trying to understand if it qualifies as a 
> hefseid merubah.
> 
> Tir'u baTov, and Gut Shabbos or Gut Voch!
> -mi

Regards

Chana