Q: I recently got a new job, and I was supposed to be paid a certain amount per month. When I received my paycheck at the end of the month, I realized that there must have been a misunderstanding between me and my employer, leading him to overpay. I called the secretary, and she confirmed that my employer was under the impression that he had paid the correct amount.
Am I obligated to let my employer know about the mistake?
My question applies to both this past month and the future.
A: We will first address the salary you were already paid, and then move on to discuss the future.
The poskim discuss a case in which someone sends a shaliach (agent) to hire workers for four (coins), and the agent hired them for three. The halachah is that although the work they did is usually paid at a rate of four coins, since they accepted the job at a price of three coins, they are entitled to only three, and it is as though they were mochel (forgave) the additional payment (Shulchan Aruch, C.M. 322:2).
Generally, mechilah is forgiveness of an existing obligation. In this agreement, however, the employer never became obligated to pay more than the lower amount, because the work was done at at that rate willingly. This mechilah is therefore considered better than most; whereas a mechilah b’lev (in one’s heart — i.e., not expressed verbally) is normally the subject of a dispute as to whether it’s a valid mechilah (see Ketzos Hachoshen 12:1), in this case a mechilah b’lev would be valid (see Chiddushei Rabi Akiva Eiger, B.M. 76a; Nesivos 12:5; Chazon Ish, Even Ha’ezer 58:5).
We discussed in the past (Issue #400) that if a shadchan agreed to arrange a shidduch for free, and now changed his mind and wants to be paid, he is not entitled to demand payment. Although his work has great value, there is no obligation to pay for it because his work was done as a gift. Furthermore, even if he didn’t express clearly that he was planning to do it for free, but that is what he thought, he is not entitled to charge for his services. If he does demand payment, it is considered theft, because the two sides are paying him only because they were under the impression that they are obligated to do so. He must therefore inform them that they are not obligated to pay, and if they want to pay nonetheless, it is considered a gift, which he may then accept (Pischei Choshen, Sechirus 8:[65]).
Your she’eilah appears to be similar to this case, at least in regard to the month you already worked, so you would be required to return the additional money you were paid. Even if the work you did was worth the actual amount you were paid, when you agreed to work for less you were mochel the difference, and you are therefore not entitled to it.
As for the future, you may decide that you are only willing to continue working for the amount he thought he had to pay you. You may make this stipulation even if stopping your work now would cause a major loss to your employer (davar haavud; see Choshen Mishpat ibid.); since he thought he had to pay that amount to begin with, he isn’t truly taking a loss.
If you are concerned that if you inform the employer that he overpaid, he will not want to pay you the same amount in the future, you may return the money in a way that he won’t know that it came from you as repayment of the extra wage he paid you, or you may compensate him by working extra hours for that additional money (see Sema 232:7).
