In this installment on the laws of paying workers on time, we address a number of important halachos pertaining to the payment of employees. These relate on the one had to cases in which the Torah mitzvah of paying on time does not apply, and on the other to the matter of paying Kollel avreichim on time.
What then is the law when the Torah obligation of payment on time is not applicable? Which principles apply to payment of child workers (such as babysitters)? And is a Rosh Kollel obligated to pay his students on time, just as an employer is obligated to his employees?
These questions, among others, are discussed below.
Do Not Delay
Beyond the Torah obligation to pay on time and the corresponding prohibition against failure to pay on time, Chazal expand the prohibition to include other cases. This principle is called bal tasheh, you shall not delay payment. Even when, for some reason, the Torah obligation of timely payment does not apply, we are often obligated to pay as soon as possible and to refrain from any avoidable delay.
For instance, for a given wage payment a person transgresses the Torah prohibition of bal talin only once. If the relevant time for payment has passed the employer has transgressed, and further delay does not involve any additional Torah prohibition. Yet, the Gemara (Bava Metzia 110 B) notes that by further procrastination he transgresses the rabbinic prohibition of bal tasheh.
Another application of this principle found in Chazal is for cases in which there is a special exemption from the Torah obligation of payment on time. One example, which was discussed at length in the previous installment, is the case of a worker who is hired by means of an agent (which can also apply to workers hired through manpower agencies). Although the Torah prohibition does not apply, there remains an obligation, based on bal tasheh, to pay on time.
Another instance of this is where both parties agreed to delay payment until a specific time. In this case, further delay of payment does not involve any Torah prohibition, yet it remains prohibited by dint of bal tasheh (Bava Metzia 110b; Shulchan Aruch, Choshen Mishpat 339:9).
Making a Claim
The Mishnah (Bava Metzia 111a) states that a person does not violate the prohibition of bal talin if the worker did not claim his due. Only upon demand does the Torah obligation come into play.
There are two ways to understand this ruling. It is possible that the Torah obligation is contingent on the demand, so that in the absence of a demand there is no Torah obligation, though the rabbinic obligation might still apply. Another explanation is that a worker who does not demand his payment forgoes his right to receive payment on time, in which case no rabbinic obligation will apply either.
The Chafetz Chaim (Netiv Hachessed 9:29) states clearly that if a worker does not demand payment, he demonstrates that he has foregone his right. Based on this, he rules (ibid 32) that if, for whatever reason, the worker is unable to demand what is due him, the Torah obligation to pay on time still applies, since there is no reason to construe his failure to make the claim as a waiver of his right. And furthermore (ibid 29), if the reason he refrains from asking for payment is due to embarrassment, the employer will violate the Torah prohibition.
This ruling has important ramifications for a child worker. Unlike an adult, a child who refrains from claiming payment (such as for a babysitting job) will often do so out of embarrassment and shyness, so that the lack of a claim does not imply any waiver of rights. Thus, for children, the Torah obligation to pay applies even in the absence of a claim for payment.
However, if a couple hired a child to work as a babysitter and the child knew in advance that the couple will come back after the babysitter is expected to be asleep, it follows that the prohibition of bal talin does not apply, since it is considered as though the babysitter agreed in advance to accept a later payment (the next morning). However, if the couple delays payment past the next morning, they will violate the rabbinic prohibition of bal tasheh.
Paying Kollel Students on Time
Does the obligation to pay a laborer on time apply to Kollel avreichim? Does a Rosh Kollel transgress a Torah prohibition if he fails to pay his avreichim on time? The principle question is whether a Kollel avreich is considered a worker or he is simply receiving a handout, for which there is no problem of late payment.
As the traditional term chaluka (handouts) implies, this latter option might be the simplest way of considering the payment of an avreich, which implies that the issue of bal talin does not arise for Kollel payments. There are yeshivos, such as Mir and others, where the monthly handout is still referred to as chalukah.
This analysis is probably true of the average yeshivas bein hazemanim—Torah study frameworks for the yeshiva vacation periods. Payments, which are given as one-time handouts at the close of the bein hazemanim period, are quite distant from how we conceive a salary. Rather, they are far closer to regular charity contributions.
True, the person contributing the money wishes to contribute to the learning of Torah, and for this reason the payment corresponds to the number of Torah hours studied. Yet, it does not seem that the students in the framework conceive of themselves as workers and the payment a salary.
In the standard modern-day Kollel, however, the status of payment seems far from a simple charity contribution. The avreich must fulfill his quota of hours to earn his stipend. Each Kollel has its special program as decided by the Rosh Kollel, and with which students must comply. Sometimes, there are additional demands too, like attending the Rosh Kollel’s shiurim. This seems to render the Rosh Kollel an employer, rather than a mere recipient of charity.
Compensation for Missing Work
But is an avreich really being paid for his work?
The Shulchan Aruch rules (Yoreh De’ah 246:5) that wages paid to those who teach Torah are considered as compensation for loss of potential alternative work, rather than direct payment for their labor—sechar batala. Do laws pertaining to workers’ payments apply to such stipends?
On the one hand, it seems that the laws of paying on time apply specifically to salaries, meaning to wages paid to workers, and not to compensation for the loss of work. In the case of an avreich, it follows that there is thus no Torah prohibition on late payment. This was the decision given by judges of the Jerusalem Beis Din (Piskei Din 7:40) concerning the payment of a private Torah tutor.
Yet, it is hard to equate the case of the modern-day avreich with the compensation for lost alternative work model. As noted, the Rosh Kollel retains (and makes use of) the right to dictate which tractate is learned. Avreichim must learn in the location of the Kollel, and coming late or failing exams can lead to reduction in payment. Moreover, it is significant that most avreichim regard the monthly payment as ordinary wages. Even if the stipend is technically considered to be sechar batala, our practical awareness of this is minimal.
Based on similar considerations, Rav Moshe Sternbuch (Teshuvos Vehanhagos 3:470:9) ruled that the halachos of employers and workers apply to a Rosh Kollel and his avreichim, just as to any other employer. This is also ruled by Shut Be’er Sarim (5:56).
A similar ruling is issued by Rav Shmuel Wosner is Shut Shevet HaLevi (Vol. 8, no. 315:1), who writes that acceptance to a Kollel is regarded as hiring a worker and therefore rules that a Rosh Kollel cannot ordinarily dismiss an avreich in the middle of the zeman.
Nothing to Pay? Nothing at All?
An important consideration, also mentioned by Rav Moshe Sternbuch, is the (all-too-frequent) matter of inability to pay due to lack of funds. In such an instance, the employer does not transgress the prohibition of delaying the payment of workers, since he has no money to pay them.
It is important to note though that if the employer has means of partially paying his workers, he is obligated to pay as much as he can, even if the full amount is not available (Ahavas Chessed 9:7). This can put the Rosh Kollel in a predicament, since paying partial payments is often inconvenient.
The simplest solution is to nonetheless pay partially, through which the mitzvah is partially fulfilled. If this is impractical, the avreichim should be informed that their payment is delayed for lack of funding. If they acquiesce to this, there is no longer any prohibition of delay. However if an avreich demands at least partial payment on time, he should be paid if at all possible.
Wishing all our readers a kesiva vechasima tova.
