MORALS IN THE MAR­KET: The To­rah on busi­ness ethics

THE QUES­TION: I have of­fered a job to some­one and asked her em­ploy­ers for a ref­er­ence: but they have replied that she will be in breach of her con­tract with them if she comes to work for me.

The Jewish Chronicle - - Judaism -

If the em­ploy­ers’ con­tention is cor­rect as a mat­ter of civil law, then your po­si­tion is very sim­ple as a mat­ter of Jewish law. In a case like this, the To­rah ap­plies the prin­ci­ple that the law of the land is valid as halachah as well. So a breach of sec­u­lar law by your prospec­tive em­ployee will be a breach of halachah.

You would there­fore have to with­draw your job of­fer. That would not be con­trary to halachah on the grounds of break­ing a prom­ise, be­cause ev­ery job of­fer is sub­ject to the im­plicit con­di­tion that in­quiries into the per­son’s po­si­tion do not re­veal any­thing that pre­vents their em­ploy­ment.

If your of­fer was ex­pressly sub­ject to ref­er­ences, then you do not even need to rely on this im­plicit con­di­tion, since the le­gal ob­jec­tion was raised by the em­ploy­ers in their ref­er­ence.

The em­ploy­ers’ ob­jec­tion may, how­ever, turn out to be un­true as a mat­ter of civil law. Even if there is a pro­vi­sion in the em­ployee’s con­tract, which would pre­vent her com­ing to work for you, that may well not be the end of the story: English law is sus­pi­cious of pro­vi­sions said to be in re­straint of trade, and an ex­press con­trac­tual con­di­tion pre­vent­ing a per­son from ac­cept­ing em­ploy­ment will some­times be found to be in­ef­fec­tive for that rea­son.

If that turns out to be the case, you will have to go on to con­sider the ethics of the sit­u­a­tion. To­rah law some­times re­quires us to go be­yond the re­quire­ments of sec­u­lar law, and To­rah thought some­times en­cour­ages us to go be­yond even the let­ter of To­rah law.

You will need to con­sider all the cir­cum­stances: whether there is a real prospect that the present em­ployer’s busi­ness could be harmed in any way by their em­ployee com­ing to work for you; whether their con­di­tion was rea­son­able in other re­spects, such as whether they paid re­lo­ca­tion or train­ing ex­penses of a kind that were com­mer­cially war­ranted only if she were to stay with them for a con­sid­er­able time; whether it would be rea­son­able for you, or pos­si­bly your em­ployee, to take steps to pre­vent loss or harm to her present em­ploy­ers or to com­pen­sate them.

Also, did the em­ployee know what she was agree­ing to when she signed the con­tract; and did she so en­tirely will­ingly or un­der some el­e­ment of prac­ti­cal com­pul­sion?

Once you have weighed all th­ese fac­tors, the fair way to pro­ceed will prob­a­bly be­come ap­par­ent to you. If the dis­pute con­tin­ues, you should of course aim to make an ar­bi­tra­tion in the Beth Din the first line of approach for its res­o­lu­tion.

DANIEL GREEN­BERG Jewish As­so­ci­a­tion for Busi­ness Ethics

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