Jewish law codifies employee’s rights, albeit allowing for many deviations based on local custom and explicit contractual agreements. Surprisingly absent from Jewish law is an obligation for severance pay on termination. While sources strongly encourage such pay as an ethical act, they do not compel it nor standardize its amount. However, local custom establishes such a requirement.
Over fifty years ago, R. Moshe Feinstein championed a severance of one month per year of service, succeeding in enshrining it in American Jewish custom. In an empassioned if brief new book, R. Naftali Zvi Frankel makes the compelling case that Jewish institutions must provide severance of one month per year. Hence the title of his book, Chodesh Le-Shanah (n.p., Kew Gardens, NY: 2012). R. Feinstein argued that while industry practices and secular law regulate most corporations, Jewish institutions must follow the one month per year custom.
This is hardly controversial today. In a relatively recent article, R. Michael J. Broyde published a ruling of his, on behalf of the Beth Din of America, obligating a Jewish school to pay a terminated teacher severance of one month per year (“Severance Pay and Jewish Law” in Tradition, 37:4 Winter ’03 [PDF]). R. Broyde explains at length the source and binding nature of this custom. Similarly, R. A. Yehuda Warburg published a ruling on this subject by a beis din on which he served, in which he also accepts this custom as binding, absent explicit contractual language to the contrary (“Tenure Rights of an Employee and Rights to Severance upon Termination or Non-Renewal of a Labor Agreement–The Beth Din Experience as a Case Study” in Hakirah 12, Fall ’11 [PDF]). However, on inquiry I learned that at least one prominent Jewish school offers significantly less generous severance packages to its rabbe’im.
R. Frankel proves that this custom of Jewish institutions is undisputed. In a show of unity, R. Frankel solicited letters from rabbinic judges and halakhic authorities across the Orthodox spectrum, which constitute the bulk of the book. The letters vary widely but unanimously support R. Feinstein’s ruling, those from Israel generally explicitly stating their opinion about the US (Israeli law requires such severance so there is no question). Some letters explain at length while others offer only a few words. R. Ovadiah Yosef provides an encyclopedic review of responsa requiring such severance and concludes that since R. Moshe Feinstein required it and religious courts enforced it a number of times, it is established custom in the US and mandatory. R. Meir Mazuz of Bnei Brak replies with six words: “הוא מרא דאתרא באמריקה ורשכבה״ג, he is the halakhic authority in America and leader of the exile.”
R. Nachum Rabinovich begins his letter by pointing out that he does not know why he was asked, since he left America almost 50 years ago. He then says that severance is determined by secular law, which can be easily learned. However, if R. Moshe Feinstein and other rabbis established a severance of one month per year, it is a binding custom. R. Zalman Nechemiah Goldberg agrees that if this is the custom then anyone who hires Jewish communal workers (kelei kodesh, broadly defined to include rabbis, Jewish studies teachers, kosher inspectors and others) implicitly accepts the obligation. R. Chanoch Ehrentreu (formerly) of London writes that the London Beth Din requires severance of one month per year for kelei kodesh. I was impressed with R. Ya’akov Forchheimer of Lakewood’s refusal to issue a definitive statement without hearing both sides of a case. But he was comfortable stating that, in general, the custom is to award to kelei kodesh one month per year.
R. Aryeh Ralbag of the Agudas Ha-Rabbonim Beis Din, R. Gedaliah Dov Schwartz of the Beth Din of America and Beth Din Zedek of the Chicago Rabbinical Council, R. Moshe Kletenik of the Pacific Northwest Regional Beth Din, R. Chaim Kohn of Khal Adas Yeshurun and many others attest to their following R. Moshe Feinstein’s ruling on this subject. Authorities from Chassidic and Litvish traditions, from Modern and Charedi communities, from Brooklyn, Lakewood, Monsey, Toronto, Mexico City and elsewhere all agree that this custom is binding. We could try to find significance in the names missing in this book but they might have lacked the time or interest to issue a letter for publication.
However, I believe R. Frankel overreaches in another area. In explaining R. Moshe Feinstein’s position on severance, R. Frankel also describes his attitude toward termination. In short, R. Feinstein believed an employer may not fire an employee without cause actionable in a beis din. He argued that termination causes financial damage and must therefore be justifiable.
Additionally, R. Feinstein argued that the tenure implicitly offered to cantors applies to every Jewish communal worker in a position of authority. Cantors, the Shulchan Arukh (Orach Chaim 53:25) rules, can never be removed from their positions without cause. Explaining “authority” broadly, R. Frankel quotes R. Feinstein as ruling that communal workers, including teachers and office workers, automatically have tenure even if their contracts are explicitly limited in time. R. Feinstein even ruled that a rosh yeshiva could not fire teachers due to a decrease in students nor a synagogue its rabbi due to fewer congregants.
While this was R. Feinstein’s position, it is by no means the only view. In terms of terminating a non-communal exployee, R. Aaron Levine argued that R. Feinstein was in the minority (“Performance Appraisal and Halakhah” in Dr. Yaakov Elman, Dr. Jeffrey Gurock eds., Hazon Nahum, p. 619):
The majority opinion regards the employee-at-will as subject to discharge without cause at any time. Occupying a position for a period of time does not create for the worker a presumptive claim (hazakah) to be kept on the job as long as work is available. Notwithstanding that the employee-at-will enjoys no court-enforceable rights to continued employment, various moral principles, as discussed below, urge the employer to keep the employee-at-will on the job as long as the job title remains open.
A minority view is expressed by R. Moshe Feinstein (New York, 1895-1986). In his view, an employment offer for an indefinite period carries with it a commitment on the part of the employer to keep the hiree on the job as long as the job remains open. Unless expressly hired as a provisional or temporary worker, an employee hired for an indefinite period can be discharged only for cause.
 R. Moshe Schick (Hungary, 1807-1879), Responsa Maharam Schick 2:152; R. Malkiel Tenenbaum (Poland, d. 1910), Responsa Divrei Malki’el 3:151, 5:215; R. Isser Zalman Meltzer (Russia, 1870-1953), Even ha-Ezel at Yad, Sekhirut 10:7; R. Abraham Y. Karelitz (Israel, 1878-1953), Hazon Ish, Bava Kamma, siman 23, p. 84.
 R. Moshe Feinstein (New York, 1895-1986), Iggerot Mosheh, Hoshen Mishpat 1:75-76.
Regarding communal employees, I do not know what view represents the majority of authorities or whether such a consensus exists. However, I note that R. Shaul Yisraeli (Chavos Binyamin, vol. 2 no. 65) rules that halakhic decisors without leadership roles, and anyone not involved in managing the community (hanhagas ha-tzibbur), do not have “authority” and therefore do not inherit positions nor (presumably, because the issues are linked) achieve automatic tenure. Additionally, R. Joseph B. Soloveitchik is quoted as saying that rabbis who do not have their congregations’ support are required to resign (Nefesh Ha-Rav, p. 267). I do not understand the basis of R. Soloveitchik’s view in light of the Shulchan Arukh (ibid.) and later authorities quoted in the Mishnah Berurah (ad loc., 86) and elsewhere. However, according to this report, he clearly did not agree with R. Feinstein that rabbis, perhaps only those with time-limits on the contract, have automatic tenure.
R. Yehudah Warburg writes (ibid., pp. 5-6), “Notwithstanding the view of R. Moshe Feinstein who argues that any employee cannot be dismissed upon the expiration of a contract period prior to a Beth Din’s determination that termination is justifiable, the consensus of most decisors is to recognize a yeshiva’s right to refuse to offer a new contract without any requisite need for a Beth Din approval. No distinction is advanced either in the Talmud, restatements or most teshuvot that a community and/or group is precluded from renewing a contract without a Beth Din’s definitive ruling… In fact, there are actual cases of teacher dismissals by communal institutions without recourse to a Beth Din judgment which were rabbinically sanctioned.”
It seems that R. Feinstein’s view on termination of an employee or even a communal employee in an at-will environment is a minority view. I am not sure whether his view on firing (or not renewing the contract of) a communal leader is majority but the report from R. Soloveitchik makes clear that it is not the unanimous view.
The issue of severance is fairly straightforward. For this very reason, publishing an entire book on this subject is difficult because what is there to say? Yet R. Frankel succeeded in publishing an interesting and compelling book, proving that severance of one month per year is obligatory for Jewish communal institutions.
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