Simon Jackson
Legal Advisor to Torah Mitzion
“These twenty years have I been with you, your ewes and your she-goats never miscarried, nor did I eat rams of your flock. That which was mangled… I bore the loss of it… even if it was stolen by night. Thus I was: in the day the drought consumed me and the frost by night; and my sleep fled from my eyes… and yet you changed my wages ten times. Had not the God of my father, the God of Abraham and the dread of Yitzchak, been with me, you would surely have sent me away empty handed; God saw my wretchedness and the toil of my hands, and so He admonished you last night” (Bereishit 31: 38-42).
Yaakov Avinu toiled for Lavan, day and night, for 20 years. According to the Code of Hammurabi, which was the Common Law in Mesopotamia at the time, the shepherd was allowed to use a certain number of animals, entrusted to his care, for food, and was not responsible for those killed by lion or lightning. A shepherd was entitled to his rest at night, and he could not in justice be held responsible if damage was then done by prowling beasts, provided reasonable precautions had been taken Only losses dues to his carelessness had to be repaid. All this throws wonderful light on the relations between Yaakov and Lavan (Commentary of Dr. J. H. Hertz, Soncino Press, 1985, p. 116).
In contrast to Lavan’s maltreatment of Yaakov, the Torah limits a slave’s servitude to six years: “Six years shall he work” (Shemot 21:2), and elsewhere the Torah warns: “It shall not be difficult in your eyes when you send him away from you, for he has served you twice (mishneh) as long as a hired worker (schar sachir) – six years” (Devarim 15:18). Ibn Ezra explains the word “mishneh” in the context of schar sachir as meaning ‘double’. In other words, the slave works for double the number of years of the hired worker. A hired worker is forbidden therefore (as a general rule) to hire himself out for a period longer than three years. This approach served as inspiration to the drafters of the proposed Employment Contract Law, 5745-1985, in Israel, which proposed that an employment contract should not be for longer than five years in duration!
Jewish Law affords the hired worker a right to strike: “A worker can withdraw [from his employment contract] even in the middle of the day” ruled Rav. “The reason for this,” states the preamble to the above mentioned draft Law, “is that he should not be ‘enslaved’ by his master, because Hashem says: ‘…the Children of Israel are servants to me, they are My servants…’ (Vayikra 25:55) and not servants of servants” (Bava Metzia 10a).
Even though the draft Employment Contract Law never found its way on to the statute book, the principle of the freedom of the individual at the basis of the aforementioned right to strike does receive expression in the Contracts (Remedies for Breach of Contract) Law, 5731-1970. This Law laid down the principle that where a contract has been broken, the injured person is entitled to claim its enforcement (‘specific performance’). One exception to this general principle is where enforcement of the contract would involve “compelling the performance or acceptance of personal work or a personal service.”
Both the above rule and exception are based on the principles of Jewish Law. As the Justice Minister stated at the time the draft Contracts Law was presented to the Knesset:
“The foremost rule is that of specific performance. A person who has signed a contract and undertaken to buy or to sell something at a specific price must carry out his promise. This rule has certain exceptions… But the most important and classic exception concerns contracts of personal service. Where a person has undertaken to work for someone, or where an employer has undertaken to employ someone, the court has no means of forcing any person to be either an employee or an employer. This principle is recognized by both Jewish and English Law… The real reason for not compelling an employee to work is that this is the start of servitude, even if only a short time…”
On the one hand, therefore, Jewish Law thus protects workers from being maltreated as slaves. On the other hand, the benefits received by the Jewish slave (eved ivri) are also to be afforded to employees. In contrast to the way Lavan “would surely have sent [Yaakov] away empty handed” after his 20 years of backbreaking labor, the Israeli Severance Pay Law of 5723-1963 recognizes a worker’s entitlement to receive severance pay upon the termination of his employment. The basis of this right is the Torah’s command to give the slave an honorarium in order to help him to make a fresh start in life: “And when you let him go free from you, you shall not let him go empty-handed; you shall furnish him liberally out of your flock…because you shall remember that you too were once slaves in the land of Egypt…” (Devarim 15:13-14).
While the Biblical command is specifically to give the eved ivri a parting gift, the Sefer HaChinuch rules that this principle should be applied to any employer-employee working relationship. “The root of the Mitzvah,” he writes in Mitzvah 482, “is to instill in us worthy traits… Therefore, we should have mercy on those who worked for us, by giving them something extra belonging to us, besides the basic salary we have paid them… Even nowadays [when the law of eved ivri no longer applies] we should share with the employee the bounty Hashem has bestowed on us (ha’anaka), even where that employee has spent only a short time in our employ.”
Before the passage of the 1963 Act, the right to severance pay was only customary in nature. This led to one Israeli Judge even expressing doubt as to whether such a custom applied to Arab as well as Jewish workers. Such doubts prompted MK Dr. Zerach Werhaftig and others to propose the draft Severance Pay Act, which made this right clear and comprehensive: “The enactment of social legislation began with the Aliyah of the Jews to this country. Jewish Law was the pioneering force behind our social legislation. Even in the absence of any binding law governing the right to severance pay, this was a long established custom in Jewish Law.”
In the year 5723 (1963), the Severance Pay Law was finally enacted. The Labor Minister, Yigal Alon, enlightened the Knesset as to the Jewish origin of the employee’s right to severance pay:
“The grant of severance pay to a dismissed worker was possibly the first social entitlement granted to employees in this country, long before there existed any organized workers union in a strong, general labor federation, following ancient Jewish tradition, which is based on the Torah’s principle of ha’anaka.”
