Question
Often I hire a babysitter to watch my children until ten o’ clock at night. Even though I plan to return later, since my children sleep well, I don’t need anyone after ten. I do inform my neighbors of the situation so that in case there is an emergency chas veshalom, they know that my children are unattended. Do I have to pay the babysitter before she leaves? Can I pay her immediately when she arrives even though she didn’t yet start working or perhaps if I do so I won’t fulfill the mitzvah to pay a worker’s salary on time since she hasn’t yet earned the salary?
Answer
The first point which needs clarification is whether one needs to pay a babysitter on time if she didn’t request to be paid. The Mishna (Bava Metsiyo 111A) writes that, in general, if an employee does not request payment of his salary, the employer does not violate the prohibition of bal talin if he does not pay. The reason is because the Gemara derives from the pasuk that one only violates the prohibition if the worker did not agree to the delay. Therefore, it would seem that if she doesn’t ask for her wages, you will avoid the prohibition of bal talin.
However, it is critical to understand the rationale for this rule. Rashi explains that the reason is because failure to ask for his salary indicates that the employee does not mind being paid late. As a result there are exceptions to this rule. For example, the Chafetz Chaim (Nesiv Hachessed 32) writes that if one is unable to request his salary, the employer must pay on time since the employer cannot assume that the employee does not mind the delay. Similarly, the Mishpat Shlomo (2, 29) and Mishpatei Torah (1, 41) write that if the reason the employee does not ask for his salary right away is because he is bashful, then one can’t be certain that the employee does not mind the delay. A child, even if she already passed bas mitzvah, often is too embarrassed to request her payment. Therefore, these poskim rule that you are required to pay a babysitter on time even if she did not request payment because her failure to request her pay does not show that she does not mind the delay.
One should note that even when the employer does not violate the injunction of bal talin he nonetheless does not fulfill the mitzvah to pay on time. The requirement to pay on time is both a lav and an asei. The only way to fulfill the asei is to actually pay what the halacha considers to be “on time.”
Therefore while one does not violate the prohibition of bal talin if the employee did not request his salary, he still does not fulfill the asei. The Chafetz Chaim goes so far as to say that one who takes advantage of halachically proper loopholes in the injunction against bal talin will be punished by Hashem at certain times (times of Hashem’s anger) since this is considered a case of failure to fulfill an asei.
Another point that needs to be stressed is that even if the babysitter is under the age of bas mitzvah one is required to pay her on time. The Rambam (Sechirus 11, 6) records this as well as the Rashbo (3, 99) and this is ruled by the Chafetz Chaim (Ahavas Chessed 9, 5). There is no dispute about this issue.
You asked whether one fulfills the mitzvah if he pays before the employee begins working. There is no Gemara or halacho that indicates that one does not fulfill the mitzvah. There is an anecdote that the Chafetz Chaim would pay his wagon driver only at the conclusion of his journey. Based on this anecdote, Rav Yitzchok Silberstein (Kol Torah 41, page 137) ruled that one does not fulfill the mitzvah to pay an employee’s salary on time if he pays before the salary was actually earned, since at that point the money which is being paid cannot be called “salary.” He thus ruled that one should not pay the taxi-sherut driver from B’nei Brak to Yerushalaim before he departs Bnei Brak since if one gets off at that point he would not be liable to pay for the entire journey since the sherut is still picking up passengers.
However, this is not the consensus of the authorities. For example, Rav Moshe Sternbuch (Teshuvos Vehanhogos 3, 470) and Rav Chaim Kanievsky (Derech Secho Parshas Ki Setsei) both rule that this precaution is unnecessary since when one pays the salary is not significant. Even if the money was paid before the salary was actually earned, the money will become salary once it is earned and since it was paid on time the employer fulfills the mitzvah. Therefore, there is no problem in giving the money to the babysitter as soon as she arrives.
Others argue that there is no problem in paying early because the Torah cites as the reason for the requirement to pay punctually the fact that the worker needs the money in order to support himself. If that is the reason there would seem to be nothing wrong with paying early. It should be further noted that the Gemara (Bava Basra 130B( rules that one may not derive halachas from anecdotes.
It should be noted further that one can even easily fulfill the precaution of Rav Silberstein by giving the money to the babysitter immediately and telling her to watch the money until she completes the job, and only then she should pay herself with the money she was watching on your behalf. The entire time she watched the money, on your behalf, the money was yours and so you are only paying after the salary was earned.
An additional way to fulfill the mitzvah, according to all opinions, is by making a bank transfer. This, you can also do after the salary was earned, thus even satisfying Rav Silberstein. If you choose to pay this way you should inform the babysitter because otherwise she may not be aware that she received the money. Even if the money is only credited the following day the worker is considered as having been paid because she can use the money immediately, for example by writing a check. Since one can purchase things with this money, the mitzvah has been fulfilled.
