Which Type of Worker
1. An employer can employ a worker in one of three different ways:
(a) A worker who is paid by the hour.
(b) A worker who is hired to complete a specific job, even if his payment is based on the amount of time it takes him. This would include a cobbler, dry-cleaners, plumber who is opening a blockage, typist, cab driver.
(c) A worker who uses his own materials to complete a specific job, who is paid on completion. For example, a sofer who is hired to write a sefer Torah on his own parchment ((Similar to the case described by the Mahara Sasson in Shut Toras Emes 119.)), a tailor who buys his own cloth and produces custom-made suits, a caterer ((Mishpat Shlomo 2:20.)), an engineer who prepares a plan. ((R’ Yehuda Silman.))
2. The prohibition of bal talin only applies to the first two types of workers. The third type of worker is strictly speaking not a hired worker at all, but rather is selling his product. ((Mahara Sasson, quoted by Ketzos Hachoshen 339:4, R’ Akiva Eiger, Pischei Teshuva 3, Nesiv Hachesed 4, Aruch Hashulchan 7. If an engineer has to oversee the work or appear in front of a committee, bal talin will apply.)) Therefore, bal talin does not apply to him.
3. A worker who is paid by the hour must be paid by the end of the day. ((See Teshuvos Vehanhagos 1:899 that the Chafetz Chayim used to pay the driver only at the end of the ride, in order to fulfill the mitzvah of paying that day.)) This is the meaning of the possuk, “until the next day”. If the next day arrives and the worker has not yet been paid, the employer transgresses bal talin. The precise explanation of “the next day” is outlined above in Section One, point 3.
4. In theory, bal talin applies the same way to a worker who is hired to complete a specific job (case 1b above). However, this is conditional on the employer receiving the goods he ordered. ((Bava Metzia 112a, Choshen Mishpat 339:10. According to the Shach, it is unclear if umen koneh be’shevach kli, and therefore in many of these cases there may not be an issur.))
5. Opinions differ why this is the case:
(a) According to some opinions, ((Me’iri Bava Metzia 112a s.v. hakablanut, and Levush 339:10 quoted in Pischei Teshuva.)) the employer does not transgress bal talin because we assume that the worker forfeits his wages until he delivers the goods.
(b) Others explain ((The Remach quoted by Shita Mekubetzes 112a.)) that this condition is deduced from a nuance in the verse. A literal translation of the text implies that only when the goods are “with you”, i.e. have been delivered, does the employer transgress the prohibition.
(c) Yet others explain ((Rabbeinu Yehonoson and the Sema 339:10.)) that the employer does not transgress the prohibition because the worker has in his possession an item belonging to the employer.
6. If the worker tells the employer, “Come and pay and you can have your object”, but the employer refuses to pay until he receives the goods, opinions differ if he transgresses or not. According to some opinions, he does not transgress since the worker refuses to give the object. ((The Mahara Sasson ibid.)) However, according to the first opinion above he would transgress, since the worker is clearly no longer forfeiting his payment.
7. According to most opinions, if the worker tells the employer to come and collect the object but does not ask for payment, the employer does not transgress bal talin. ((Ahavas Chesed quoting the Shita Mekubetzes in the name of Rabbeinu Yehonoson.)) Others disagree. ((The Mahara Sasson and the Graz (she’elah vesechirus 13) imply that he transgresses, even though he has not collected the object, but the Remach is unsure.))
8. If the worker delivers the object, but the employer refuses to take it, according to most opinions, the employer could now transgress bal talin. ((Aruch Hashulchan 339:8. Presumably, the Meiri, Levush, Mahara Sasson, Remach and Graz would agree with him. According to the Mishna Brura, the employer does not transgress.))
9. If the employer accepts the object but gives the worker a valuable item in lieu of payment in the meantime, the employer does not transgress if the worker is satisfied with this. ((Shivas Tziyon 100, Ketzos Hachoshen 72:23. Even if the worker changes his mind and wishes to return the object and get paid, the employer does not transgress bal talin, since the money owed is now regarded as a debt, not as wages.)) If the worker is not satisfied, opinions differ if the employer transgresses. ((The Graz (she’elah vesechirus 13) based on the Sema writes that he does not transgress. The Aruch Hashulchan quotes his opinion and disagrees.))
ועיין משנה ברורה סימן רמב בביעור הלכה ד”ה לכבד
וכדאי להוסיף שיש חילול השם אפילו בעופן השלישי אם הפועל תלמיד חכם
Leave a comment