Simon Jackson
Legal Advisor to Torah Mitzion
Can injurious terms and conditions of employment constitute grounds to annul an employment contract or at the very least to force the employer to agree to more fitting terms and conditions?
The great 15th century Ashkenazi halachic authority, R. Yisrael MiBrona, was questioned about the halacha that applied to a “woman or young girl whose employer sent her on errands to the marketplace and nonJewish houses by herself.” The servant argued that she was hired to serve “according to the manner of servants in the home” only and not in the public arena.
Mahari MiBrona’s ruling (Siman 241) left no room for doubt:
“The employer cannot force her to enter non-Jewish houses alone… This applies even where the public are accustomed to entering such areas. While no prohibition is involved, he is nonetheless unable to force her, because some women… act modestly or are afraid…”
The interesting point to note about Mahari MiBrona’s ruling is that he does not take account of solely objective factors, in making his decision, but also – and perhaps only – subjective considerations. The fact that the specific worker in question is concerned that her honor and dignity may be slighted suffices to prevent her employer from forcing upon her injurious terms and conditions of employment. Assuming this test is not misused by the employee (which is theoretically possible, though practically not usually the case), this ruling provides a counterbalance to the natural sense of power ordinarily enjoyed by the employer.
***
Two centuries later, R. Yair Haim Bakhrach was presented with a difficult case of injurious employment (Shut Havot Yair, 106):
“Concerning a certain woman known to his Excellency for her name and deeds as an angry and pedantic person, who behaves like a vulture and a heron [two of the impure birds of prey, deemed an abomination in Vayikra 11:14 and19], and for this reason no one was able to bear her, and she was without a servant for many years, and at the beginning of this winter, fed up with all the housekeeping work, she hired an unmarried girl as her servant; and her oppressive treatment beyond what is customary, according to the words of the girl, together with the constant concealment of bread in a chest, led to struggles between the mistress and the servant…”
In order to terrify the servant and to realize her rights, the mistress held back the Sabbath clothes of the fleeing maidservant and hired an alternative servant to fill her place at a higher wage. The mistress would also deduct money from the servant’s salary for any breakage or damage caused by her in the house.
From the detailed description of the question, it can be inferred that the servant was deprived of food by her employer and was subject to degradation and maltreatment at her hands, as a result of which she was forced to flee and to seek work in another house, without pay, in return for her food only. Noteworthy is the caution with which the Havot Yair formulates his words (“according to the words of the girl”) not having heard the other party’s side. Indeed, throughout his response, the Havot Yair cautions against passing an opinion on something without first hearing the facts from both parties and first-hand.
As with many other Poskim, the Havot Yair attributes great weight to the “customary practice” on this matter. He determines that the question whether a particular hardship is acceptable depends on the clear norm which is conventional in that society. Anything which falls short of the clear norm applicable to similar women in her position is forbidden, e.g. hiding the bread under lock and key. This applies even if her own children suffer in this manner, for “just because they suffer [or have got used to the situation], why should she have to suffer?” Where the norm is not clear-cut, even though the employer has the upper hand in such a situation, he rules that the law should be decided in favor of the employee by virtue of the great principle of Jewish law: “For the Children of Israel are My slaves – and not slaves to other slaves,” which enables a worker to “withdraw from his employment contract even in the middle of the day” (see Bava Metzia 10a).
As to the mistress’ practice of deducting money as compensation for breakages of household items, strictly speaking, the mistress has the upper hand according to the Halacha in this regard, because the servant has the same law as a paid guardian (Shomer Sachar) who is responsible for thefts and breakages other than those caused in the course of her work. While the majority of women do not care about small losses, others do, and the Halacha states that in monetary matters we do not follow the majority. However, concludes the Havot Yair, if only one or two women from that town are so exacting it would appear that their opinion is not taken into consideration, being that it is held by an extremely small number of misers, in which case it is not regarded as even a minority opinion!
Intriguingly, the Havot Yair notes that on many occasions a homeowner and a servant came before him, and at times the former retracted his complaint against his servant’s lateness on several occasions…“but I never litigated between them; I simply invested great effort until I had uncovered the reason behind the complaint.”
***
In our last column, we described the case of Jerusalem SuperPharm drugstore chain cashiers forced to stand on their feet all day long without resting even for a short period of time. Adv. Yuval Elbashan, founder and director of the Hebrew University’s Legal Education Center for Human Rights, recalled the incident a month later in November 2004, from the podium of the Sderot Conference on Society held annually in the southern development town as a counter to the annual Caesarian Conference of Israel’s economic elite. His comments, reported in the Israeli press, made waves: a public campaign developed against cashiers’ harmful work conditions, demonstrations were held outside SuperPharm branches, a counter-campaign was initiated by the chain’s management and a compromise was reached.
A few weeks later, the drug chain, fearing a widening consumer boycott, changed its policy. Cashiers would still stand, but SuperPharm improved their conditions by increasing the number of breaks they could take during an eight-hour shift, and provided orthopedic rugs in cashiers’ booths to ease the strain on their legs, as well as medical counseling on care for their feet and backs. The campaign has since led Supersol’s management to allow cashiers at its Universe Club branches to work while sitting, as do cashiers at the supermarket chain’s other stores. But these improvements are the exception rather than the rule.
Ironically, it is precisely those employees who are the weaker members of society and whose interests are most in need of protection who suffer the most. A proposal for a law against “harmful” patterns of employment (including non-compliance with wage and safety laws, harassment of workers, humiliation, insult and more) was presented to the Knesset in February 2005. However, even if this becomes law it arguably does not go far enough. As long as the public does not pay the price of the lost honor of the workers who serve it – for example by taking its business elsewhere, as happened with Adv. Elbashan in the SuperPharm example – employers will continue to relate to their employees as if they are essentially invisible. According to one social activist who opposed the compromise on orthopedic mats, the SuperPharm cashiers’ conditions have improved but their status has been damaged: From now on they are no longer able to demand more than the minimum wage for a long shift on their feet and a tiny break.
