Legal Advisor to Torah Mitzion
In our last column, we noted the Biblical world of employment relations as perceived in the story of the engagement of Yaakov Avinu by his father-in-law, Lavan. The Torah describes in great detail the work relations between the two: from their initial employment contracts (29:18), Yaakov’s exemplary conduct as a hired worker (31:38-42), the wage agreements entered into between them (29:18 and 30:28-34), the repeated breaches of these agreements by Lavan, and culminating in the unilateral termination of these agreements by Yaakov’s act of fleeing from Lavan (31:17-21).
The Dedication Required of an Employee in Performing His Work
Yaakov Avinu describes to his wives the tremendous dedication he brought to the job when working for Lavan, in order to prove that he has fulfilled his part of the agreement with their father: “And you know that I have served your father with all my power” (31:6). From the intensity of his outburst, it appears that Yaakov is commenting on the fact that he served Lavan with enormous dedication, which went well beyond what the law actually required of him. Nonetheless, this pasuk is brought down as the source for the halakha which obligates every employee to work for his employer with all his might. In the words of the Rambam (Hil. Sechirut, 13:7):
“In the same way as the rich man (the employer) is cautioned against stealing or delaying the poor man’s (the employee’s) wage, so too is the poor man cautioned not to steal the employer’s working hours during the period of his employment… He is duty bound to be exacting with his time, as we see from the halakha that requires employees to forego saying the fourth beracha of Birkat HaMazon during work hours. He is also obligated to put all his efforts into his work, as we learn from Yaakov Hatzadik who said: ‘I have served your father with all my power.’”
In our own times, Rav Ben Zion Chai Uziel (the Israeli Sephardi Chief Rabbi until his death in the year 1953) summed up the Halakha in the following moving language:
“The worker is obligated to regard all his physical and mental abilities as subservient to the work for which he has been engaged… The Gemara relates how “Abba Chilkiya did not greet those who asked after him, because he held: ‘I am a day worker and I must not lag behind with my work’ (Kiddushin 33a). And the halakha is very clear that: ‘Craftsmen employed by others must not interrupt their work to stand before the elderly or the wise (i.e. in order to perform a Mitzva from the Torah!), so as not to interrupt the proper performance of the work…’
And in the same manner that the worker must be exacting in terms of his loyalty and punctuality towards his employer’s time, so must he devote all his efforts to his employment… The employee must carry out his work with love and mutual respect towards his kinsman, the employer, and must demonstrate a love towards the work in which he is employed. Nor should he work like a robot or as someone who merely works because he is commanded to do so or as an employee who awaits the reward for his labors; he should rather act as a creative partner in building up the business.”
Nowadays it would appear that one may interrupt one’s work for short periods of time – because employers allow breaks of this nature. And the Shulkhan Aruch (O.C. Siman 110:2) already laid down that despite the Gemara’s ruling that a hired worker should daven a shortened form of Tefillah at his workplace, we assume that an employer will allow his employees to take time off to daven the entire Tefillah. The Magen Avraham adds that in those places where the employer does not mind, employees may even daven with a Minyan. In the year 5760 (2000), the Israeli Hours of Work and Rest Law of 1951 was amended to state: “An employee is entitled to pray during the course of his work in accordance with the requirements of his religion; the time of Tefillah shall be set by the workplace depending on the needs and demands of the work, and in consideration of the religious requirements of the employee.” Nonetheless, the demanding work model exemplified by Yaakov Avinu still remains the overall norm in the workplace.
The responsibility owed by a worker towards his workplace applies also to his activities outside of his work hours. An employee is forbidden to engage in night-work, in addition to his day-time job as a hired worker, for by so doing he steals the (quality of) the work performed for his employer during the day, which he is unable to perform in the best possible manner (see Rambam, Hil. Sechirut 13:6). In this vein, it is interesting to note that workers employed in the public sector in Israel are permitted to carry out only a limited number of hours of private work in relation to their hours of work for the public sector.
An Employee’s Liability for Damages
In our last column, we quoted in full Yaakov’s bitter complaint to Lavan, his employer (31:38-40), that he was required to pay for losses and damage which were not the result of his own carelessness. In the words of the Midrash (Sechel Tov, 31:39):
“And even though shepherds were not responsible to pay for mangled animals whose carcass they would bring to their owners, I did not ask to exempt myself… ‘even if it was stolen by night’… And even though a Shomer Sachar (hired worker) is exempt from paying for anything taken captive, broken or dead … I, however, had to pay for everything.”
Indeed, according to the Halakha, an employee who has caused damage to property belonging to his employer is treated like a hired worker who bears an intermediate level of liability [greater than that expected of a Shomer Chinam (an unpaid worker), but less than that of the Shoel (a borrower)]. From this it follows that an employee who damages his employer’s property is liable (only) for damage caused by his negligence.
However, this column would be incomplete without any reference to the incredible case of the workmen hired by Rabba Bar Bar Chanan to bring him a barrel of wine (Bava Metzia 83a). In their negligence, the workers broke the barrel, and in order to recoup his loss, Rabba Bar Bar Chanan confiscated their cloaks. In a Din Torah brought by the workers, Rav ruled that Rabba had to return to the workers their cloaks, and exempted them from paying for the damage they had caused. When Rabba expressed amazement at Rav’s ruling, Rav responded that he based himself on the pasuk in Mishlei (2:20): “in order that you may walk in the ways of the good”. But the story did not end here. For the workers (who had not only failed to perform the work for which they were hired, but even caused their employer severe financial loss) proceeded to complain to Rav that they were hungry and had not received their wages! And Rav, relying on the end of the above pasuk – “and keep the paths of the righteous” – ordered Rabba to pay his hungry workers the wage which he had promised to give them initially!
It seems that in this story we see exemplified one of the basic principles of labor law, which give preference to the employee over the employer, because the employee is the weaker party to the agreement. An attempt was even made to codify this principle in the draft Employment Contract Law of 1985 (“A court may exempt an employee from the duty to pay compensation owed to his employer where the employee has acted in good faith in performing his work” – s. 10). However, this draft Law did not find its way to the statute book, and because of its ethical nature, the vast majority of Poskim have ruled that it is not enforceable as a matter of law – even by the religious courts