As we saw last week, the Torah is very concerned that workers should be paid on time. Two mitzvos, one positive (beyomo titen secharo) and one negative (lo talin), instruct us to pay our workers on time. The Torah and halachic authorities are extremely strict concerning the obligation to pay one’s workers on time, and unfortunately this is an area of halacha that is not always observed scrupulously.
This week, we turn to additional halachic principles concerning the obligation to pay workers on time. Specifically, we will deal with the question of when payment to craftsmen must be made, which depends (among other factors) on the definition of the transaction between a client and a craftsman. Additionally, how does the halacha of paying workers relate to employment by means of an agent, and how does this apply to the common case of employment through a manpower agency?
These important issues are discussed below.
When to Pay a Contractor
As noted last week, the underlying idea behind the obligation is to pay a worker right after he completes his work. In the case of a contractor or tradesman, the work is complete when the item is returned to its owner, and only then does the obligation to pay take effect.
Although the simple halacha is that the obligation to pay is incumbent when receiving the goods, the Aruch HaShulchan (Choshen Mishpat 339:8) adds that if a repairman or tradesman informs the owner that the item is ready for pickup (and wishes to collect his fees), then if the owner refrains from collecting it (though he has the money to pay and the ability to pick up the item), the owner transgresses the prohibition.
This is not agreed by all authorities. Some write that even after the item is ready, the obligation to pay only applies when the owner actually receives it (see Biur Halachah, Orach Chaim 242, s.v. Lechabed; see also Sema 339:10).
For example: Shimon picked up his garment from the tailor who asked him for payment. Shimon forgot to bring money to pay the tailor, and asked him to wait a couple of days until Shimon would come back to the neighborhood. The tailor answered that his rent is due today and he is short on money. In this case, according to all opinions, Shimon is obligated by a full Torah mitzvah to pay the tailor on the same day, even if he has to make a special trip to do so.
However, this halachah may not apply to all contractors. According to some opinions, there is an exception if the raw materials for the contracted job belong to the worker rather than to the person who ordered the work. Examples would be a builder who is contracted to build a new house or a tailor who sews a new garment using his own materials.
The reason why the Torah obligation of paying on time does not apply in those cases, according to these opinions, is because we view the relationship between the two parties as of a buyer and a seller, not as an employee and his employer. This point is made by the Ketzos HaChoshen (Choshen Mishpat 339:3, citing Shut Mahara Sasson; see also Aruch HaShulcha 339:7; Netiv HaChesed 10:4. See also Nesevos Hamishpot 333, 15 who may disagree.).
Paying for Repairs
In fact, even when a craftsman repairs or otherwise improves an item given him by a client, the Gemara (Baba Kama 98-99) records a dispute concerning whether or not the craftsman acquires some ownership in the relevant object. For example, if a craftsman was given a piece of wood and commissioned to make a chair, Amoraim debate whether he acquires a portion of the chair.
This matter is not clearly resolved by the Shulchan Aruch (see Yoreh De’ah 120:10, Even Ha’ezer 28:15; Choshen Mishpat 306:5). The Shach (Choshen Mishpat 306:3) concludes that this matter is not resolved and remains in doubt.
However, many others including the Aruch Hashulchan (Choshen Mishpat 306:4) interpret the Shulchan Aruch as ruling that the craftsman does not acquire a portion of the object he fashioned.
Naturally, the artisan’s partial title to the item is only temporary, and is terminated at the time of payment. Therefore the Ketzot Hachoshen (306:4) concludes that the rule of uman koneh beshevach keli (granting the craftsman partial ownership in the item) does not apply when the artisan does his work pro bono. In this case, it is considered as though the craftsman was already paid, so that he acquires no share in the object he worked on.
The Gemara (Bava Metzio 112A) states that the client’s obligation to pay the craftsman on time is contingent on the status of the transaction between the two. If the craftsman has acquired a portion of the item, it follows that the transaction is a sale rather than a payment of wages, so that the mitzvah will not apply. However, if the craftsman has not acquired a share in the item, the payment is a regular wage payment and the full obligation applies.
Certainly, one must act stringently in this and ensure that the craftsman is paid on time.
The Ahavas Chesed (1:10:12) moreover writes that in keeping with the Torah precept of protecting worker’s rights, it is prohibited to order work from a craftsman in the knowledge that the client does not have the money to pay him, without informing him in advance that payment will be delayed.
Employment by Agency
An important halacha concerning the obligation to pay laborers relates to employment through an agency.
The basic principle governing this issue is found in Bava Metzia (110b-111a). Here we learn: “If one tells his friend, ‘Go hire workers for me,’ the two of them will not violate bal talin (delayed payment of salary). The person who sent the envoy will not transgress because he did not hire the worker; and the envoy will not transgress because the salary is not his responsibility. What case is this referring to? … It must be referring to a case in which the agent said, ‘Your pay is the employer’s responsibility.’”
We learn from this Gemara that when someone who orders labor through an agent does not pay on time, he does not violate bal talin. Since the one who hires the worker is not the one who actually pays the worker, the concept of bal talin does not apply.
This can have important ramifications if a worker is hired through a manpower agency.
Employment by Manpower Companies
Like in most modern legal systems, the rights of workers in Israel are regulated by law: The Law of Employing Workers Through Manpower Agencies (1996). The law means to protect the rights of workers who are employed through a temporary manpower agency, who often belong to the weaker elements of society (agencies are commonly used for cleaning people, machine workers, deliverymen, and so on). By law, one who hires a worker through such an agency must ensure that the worker receives the rights due to him by law (such as various benefits, insurance, and so on). He cannot claim that the agency has to provide the worker his rights and that he has no personal responsibility for doing so.
How does halacha relate to this issue?
The Gemara (Bava Metzia 76a) discusses a case in which an agent hires a worker on behalf of an employer. In discussing who needs to pay the worker, the Gemara makes a distinction between a case where the agent tells the worker, “Your salary is the employer’s responsibility,” and one who says, “Your salary is my responsibility.”
In the latter case, the agent has to pay the worker’s salary based on the benefit that the work produced (unless other details are agreed upon), while the employer (the mazmin—the person who ordered the work) has to reimburse the agent for his salary expenses. For this case, the relationship between the employer and the worker is not discussed, but it appears that there is in fact no relationship between them: the employer does not pay the worker, and his only obligation is to reimburse the agent for his expenses.
In the former case, the employer has to pay the worker’s salary. Nevertheless, the obligation of payment on time will not apply because this obligation does not apply when employment is arranged through an agent. Use of an employment agency seems to be a classic instance of this halacha.
Yet, even when the specific mitzvah of bal talin does not apply, it remains obligatory to pay workers on time because there is a general Rabbinic requirement to pay people money they are owed. Only if it is very difficult to pay on time can one postpone his workers’ payment and then only if the Biblical requirement does not apply. Thus, in any case, one must pay his workers before giving a donation to a poor person collecting charity (see Ben Ish Chai, Shut Rav Pe’alim 4, Choshen Mishpat 7).
The reason for this is that although giving charity is a Torah mitzvah, paying one’s workers also fulfills a halachic obligation, if not the obligation to pay laborers, then the obligation to pay one’s debts. In this case, the wages become a regular debt, which the employer is responsible for paying. Moreover, giving charity is not a definite mitzvah, since perhaps the collector is a fraud. The Ben Ish Chai adds that there is an additional (rabbinic) transgression of bal tashe, which we will discuss in the next installment.