Pink Slips, Black Realities
October 26, 2023
Have employment trends reversed?
A look at layoffs.
“Pack up your things. You are no longer employed here.”
Perel blinked. She’d known the severe lack of sleep in the past week was unhealthy, but was it really causing her to hallucinate?
Was that her boss, breathing heavily at the entrance to her cubicle, scattering her Post-its with his sweeping “out” gesture?
She had just come off a frenzied between-school-and-camp week. The kids were home all day and climbing the walls. But it was billing crunch time at the office; Big Boss wasn’t cutting slack.
So she’d sat each night, hour after hour, at the glowing laptop screen.
An entire bag of Ostreicher’s.
Anything to keep her eyes from slooooowly blinking closed, her head from lolling to the side, resting on the armrest for just…one…minute.
Finally, this morning the torture had been over.
It was the first Monday of September. Her kids were safely in their classrooms. She was back at the office, sound except for a debilitating fatigue which spread through her like a mudslide in slow motion. The debris would settle and normalcy would resume.
Perel shook her head, glanced at her coworkers. All except Brenda—who was wide-eyed, her mouth literally hanging agape—were hunched over their computers, typing with suspicious diligence.
The boss half turned, knocking into a lineup of blue BICs. They rolled to the edge of the desk, one by one. Plink, plink, plink.
Brass tacks: the legalities
Henny is just stepping into her second trimester.
Jack has difficulty focusing on detailed tasks.
Old Mr. David has an intensive physical therapy schedule which frequently has him clocking out of his jobs.
Should they disclose their preexisting conditions at their job interviews?
Chaim Book of Book Law LLP, an employment and labor attorney, says, “Legally, job applicants aren’t obligated to disclose a disability or pregnancy. But although the law requires employers to accommodate disabilities, on a practical level, it’s unwise to take a job if your disability prevents you from doing the job. Additionally, employers get upset when caught unawares.
“I think it’s a good idea to discuss any conditions you have after getting the job offer but before starting to work. This way, the employer knows what accommodations they’ll need to make, but it’s too late for them to retract his offer because of it. You can hammer out the job details with your employer in a way that leaves both of you satisfied.”
Mr. Book sketches the legal basics of firing. “According to New Jersey law, employment is at will. That means employers can hire and fire for any reason, and employees can quit or resign for any reason, too. You don’t have to provide a reason, you don’t have to give advance warning, and you don’t have to keep them for any length of time.”
There are, however, protected categories. One may not fire a worker because of age, race, color, religion, gender, pregnancy, or disability, among other things.
Black and white: termination in Halachah
How does Halachah view firing?
Rav Dov Kahan, dayan on Bais Din Maysharim and rav of the Arlington shul, cautions against halachic generalizations.
“When a hairsbreadth of a detail changes, the entire psak may change. We have to be careful not to apply examples to our own circumstances and to ask a posek when questions come up.”
That said, Rabbi Kahan explains that halachah generally allows employers to fire employees for any cause, provided that it isn’t within the term of employment.
“Employment has changed in the past couple of decades. Whereas in the past, most workers had termed contracts, today, they’re almost nonexistent. Virtually all employees, even in large companies, are hired on an at-will basis.”
“Regarding the legally protected categories, while the law has no counterpart basis in Halachah, dina d’malchusa dina can arguably be applied here,” Rabbi Kahan says.
Out of the blue
There are laws and halachos that dictate the ethicalness of why and how employers give the boot. Yet horror stories abound.
“Just weeks before I was due to go on maternity leave, my supervisors tried to get me to quit,” Malya shares. “They came up with every reason I should want to leave. They said that I could do better somewhere else. They pointed out that some coworkers weren’t nice to me and that I probably wasn’t comfortable in the company’s environment. They refused to explain why they wanted to get rid of me, and I refused to hand in my resignation.”
When her managers couldn’t persuade her to leave of her own accord, Malya was fired.
“On the official dismissal documents, the ‘reason’ blank was left empty.”
From her perch in early—and completely unpaid—maternity leave, Malya says, “I understand that I can sue my ex-employer. It’s just not something people do.”
Indeed, Chaim Book isn’t quick to advise employees to sue.
“Every situation is unique,” he says. “If you were let go after getting good reviews and no criticism, and you suspect that you were let go for a discriminatory reason, it can be cause for further investigation.”
Parenthetically, he recommends that employers provide an explanation for termination whenever possible.
“Don’t just go ahead and file a lawsuit.” The first step Mr. Book recommends taking is talking to a lawyer. “They can reach out—even unofficially—to find out the real story.”
Mr. Book points out that sometimes, the explanation behind the firing is one that the boss is uncomfortable sharing with his erstwhile employee.
When legal action is warranted, “lawsuits are not the only option,” he adds. “You can file a complaint with the Department of Labor or the Civil Rights Division or, on the federal level, the EEOC (Equal Employment Opportunity Commission.) They can carry out an investigation and a hearing.”
Rabbi Kahan adds an important caveat: “One may not sue in court without a heter from beis din. You can, however, take a former boss to a din Torah. The dayanim will decide if a lawsuit is appropriate.”
When it comes to firing, Penina, an HR expert with 17 years’ experience in the field, has boots on the ground. Through LRRC (Lakewood Resource and Referral Center), she coaches people on labor law and unemployment questions pro bono.
“About 200 Lakewood-area employees were let go in the past six months,” she says.
Is this indicative of a wider trend? If so, does it point to a deeper issue?
Penina is now being flooded with calls for help from many newly unemployed locals.
“An economic downturn is occurring,” she observes. “It’s accentuated by the sudden dearth of all the free covid-era cash. At 2020’s conclusion, companies were making lots of money at record speed. Starting salaries skyrocketed. Business was booming. As salaries increased across the board, the cost of living rose to match them.
“The emerging fiscal slump primarily hit real estate first. Management, mortgages, closings, purchasers, and fix-and-flips were affected. As government funding dries up, health care is the next field to get depressed. And when one industry drags, others are impacted.”
In other words, salaries are up, life costs are on the rise, and inflation is even higher. Key government funding that infused cash into business for the past three years has stopped for the most part, and now key industries are slumping, too.
“The hiring frenzy of 2022 has, for the most part, died down. There’s no extra money to have non-vital workers in the office, and even well-established companies are letting people go. Everyone is minimizing costs and maximizing what they already have. Gone is the sense of complacent security.
“People are looking for better careers because the cost of living has gone up, but there simply aren’t jobs to be had. Some positions that used to pay 100K or more no longer exist. Cities and towns are growing, but the job market is stagnating, and in some cases, shrinking, while more and more people hit the job market.”
Is any field safe?
“Health care and finance are usually quite secure—people always need them,” Penina says. “This doesn’t include ‘extras’ such as extra therapies, some self-care professions, and even some controllers and CFOs, which may be first to be trimmed when finances are tight.”
Think essentials—the core nursing home billers, the no-frills bookkeepers, and nine-to-five bankers.
The reality can be hard to reconcile with the apparent need for more employees. Flipping through the “job wanted” sections these days, it appears that there are many positions available.
“It is hard for people to see the downturn that has started. While there are jobs to be had, employers have become much more selective of applicants’ skills and availability when confronted with the fiscal climate we now have,” says Penina.
Penina shares, “Moishy*, a real estate purchaser, recently lost his job. He has a full family to support. From one day to the next, his six-figure paycheck was gone. He also lost his health insurance; he’d been covered by the business’s plan. Residual income and his wife’s side job make him ineligible for Jersey Care. He can’t afford COBRA (Consolidated Omnibus Budget Reconciliation Act) health-care payments either. Baruch Hashem, I was able to connect Moishy with a promising job interview, and hopefully, he’ll be back at work soon.”
It isn’t always smooth sailing.
“Losing a job is a bigger deal now than it was a year or two ago. The cost of living makes it much harder to survive. Today’s market does not leave much space for learning curves or negotiation in general. Even with lots of talent and experiences, the pay is just not as high as it once was.”
How should firees cope?
“The first order of the day is to ask about severance pay,” Mr. Book says. “It isn’t required as a legal matter, but it never hurts to find out; your ex-boss may just be agreeable to it. Then, file for unemployment. This benefit is available to most applicants. If you’re part of a union or you have a contract, take a look at what the proper procedure is.”
When confronted with a layoff and problematic unemployment issues, Penina advises that terminated employees have a discussion with their former boss and explain where the firing leaves them. “They may be agreeable to striking some sort of deal until you’re back on your feet.”
“A dismissal may look bad on the surface,” Rabbi Kahan says, “but in my experience, there is often a good reason behind it. For example, when a woman was let go after having a baby, she was very upset. The truth was that she had been doing subpar work for a while. Instead of firing her, her boss had hoped that once her baby was born, she would either improve or choose not to return. When neither happened, he was forced to let her go. The most difficult instances are when the employees won’t accept that they need to improve. In that case, there’s really no hope.”
As a labor lawyer, Mr. Book is often approached by employers who let inept or inefficient workers go and are being threatened with a discrimination lawsuit.
“I always ask for evidence that the worker was doing as terrible a job as the employer says they were. It’s important to document these things. Emails demanding improvement or warning of repercussions are the facts that will back up your claims. They’re crucial in a lawsuit case.”
Employers sometimes avoid pointing out their workers’ faults in a bid to avoid confrontation, discomfort, or hurt feelings. “A layoff should not come as a complete surprise to a worker. In the case of an incompetent employee, avoidance is not always the right route to take.”
Termination law gets sticky fast, as Mr. Book illustrates with this discrimination case:
“Sam started a job. Within three weeks, it was clear that he wasn’t producing good work. His boss didn’t say anything. He took week four off for unexplained health reasons; he hadn’t yet accrued any sick days, but his superiors were kind and granted the request. When he came back, he continued doing poorly, all the while taking a half day off here and an early sign-out there to take care of ‘personal issues.’ Then, he messed up on an important project. Before his employer had time to respond, Sam presented a doctor’s note that said he needed twelve weeks off. The final straw had settled. Sam was asked to leave.”
Ridiculously, the story isn’t over.
“Sam is claiming wrongful termination due to illness. In reality, he wasn’t doing his job.”
Surely, the case is an open-shut one. Sam’s former employer has an airtight story.
“Not at all,” Mr. Book says. “It’s actually very difficult. The boss has no documentation of Sam’s incompetence. The case is still ongoing.”
“Yechezkel is the co-owner of a successful manufacturing company,” Rabbi Kahan relates. “One day, he discovered that Yaakov, one of his salesmen, was downloading key contacts onto his personal computer. Apparently, he was planning to open a competing business, taking the company’s connections with him. At the very least, he was moonlighting—also a clear breach of employment.
“The owners called me, frantic and furious. They wanted to fire Yaakov immediately.
“‘You’re right,’ I told them. ‘What he’s doing is terrible. But you must give him a chance. You need to confront him with what you’ve discovered and ask for an explanation.
“‘What’s the point?’ asked Yechezkel’s partner, Meir. ‘We know he’s a ganav. We should walk him right to the door.’
“‘Everyone deserves a day in court,’ I said.
“When Yaakov was confronted, he quickly broke down. ‘I was always loyal to the company, but my salary isn’t enough to keep my family afloat. I did what I did because I’m desperate.’
“The bosses saw real remorse, and they decided to offer Yaakov a second chance. They adjusted his job to a more profitable position.
Many years later, I went to a bris for Yechezkel’s son. When Meir saw me there, he gave me a hug.
‘Baruch Hashem, Yaakov is still working for us,’ he told me.”
Sometimes, the actual firing is inevitable, but the way it’s done makes all the difference.
“To avoid insult, some employers use excuses such as blaming the layoff on a financial downturn instead of telling the employees that they aren’t good enough for the job. (This approach isn’t always appropriate.) Others who recognize the responsibility for their employees’ parnassah do even better and try to find a position within the company that’s more suitable for them. If that doesn’t work, they make recommendations or connections with other businesses for an appropriate potential position.
“Whether they get the job or not is only half the equation; employees sense that their former employers care, and that is crucial. I know someone who held onto a terminated employee for a set amount of time, during which she was able to land a new job.”
A résumé looks so much better when the applicant is presently employed. They present as productive and capable people, and instead of being lowballed, they come out stronger in negotiations. Holding an employee for just a few weeks can provide them massive benefits whose trickle effects can last a lifetime.
It’s nice to avoid confrontation, but shouldn’t ex-bosses offer constructive criticism on the way out?
“Constructive criticism doesn’t usually work at this junction. It works when the employer is trying to help their worker grow and succeed. When they are letting the worker go, it’s a lot harder to accept.”
On a hashkafic note, Rabbi Kahan shares, “Hakadosh Baruch Hu provides parnassah for every person. Some get it directly, and some through a conduit, meaning another person. Hashem bentches an employer with bounty so they can be a channel of parnassah for others.
“With the brachah comes an achrayus. Employers must realize that they have a responsibility toward their employees. Rav Shimon Shkop says that if employers do a good job of being providers, Hashem will bentch them with more parnassah so they can support more people. If, however, they fire people without good reason or fail to train and educate employees so they can become productive, Hashem will send His money elsewhere. “The Mishnah in Avos (1:5) states, ‘Yihiyu aniyim bnei veisecha.’ Mefarshim explain that Chazal are advising that one should hire people who need parnassah because the greater the number of people who financially depend on us, the more parnassah Hashem will send our way. We have to be worthy of being providers. If not, we’re risking the prosperity of our own businesses.
“Employer-employee conflicts aren’t always pretty. But when we work things through together, many situations can be salvaged.”