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The obligation of paying one’s employees on time
By Dayan Yehoshua Grunwald
The Mitzvah
Hiring an employee comes along with the responsibility of many Torah and rabbinic commandments, the most basic of which is paying on time. On a biblical level, when an employer doesn’t pay his employee within the end of the day (or night) of the last day of a work cycle, he can potentially commit five Biblical prohibitions. There is also a positive Biblical commandment to within the ‘onah (day/night) of which the work ended, and thus, not paying on time would be in violation of that commandment as well.[1]
The Exclusions
There are a few exclusions to the above mentioned prohibitions. They are the following: [1] If the employee was either hired through an intermediary. [2] The employee doesn’t demand the money[2] [3] The employee agreed to be paid later[3]. [4] The employer doesn’t have funds to pay (or even if he has funds but will suffer a loss to pay on time).
Although the aforementioned exclusions apply on the level of Biblical prohibitions, there remains a rabbinic requirement to pay as soon as possible, which is derived from the Passuk: “Al tomar l’re’acha lech vashov v’yesh itecha.”[4]
Taking Advantage
It’s logical that an employer should try and take advantage of one of the aforementioned exclusions to avoid any potential violation of any of the Biblical transgressions. However, according to many opinions there is a disadvantage, because when the transgressions are inapplicable one doesn’t positively fulfill the positive commandment of paying on time – “B’yomo yiten s’charo” – either[5]. So by setting up the arrangement in a manner that “Bal Talin” (the prohibition not to pay on that day) does apply – there is the ability to gain that Mitzva when attained (albeit at the risk of transgressing the multiple prohibitions when not attained).
So which one is better? Employing the exclusions and thereby avoiding any possible Biblical transgressions? Or is it ideal to attempt to fulfill the Biblical positive commandment?
This question was already dealt with in the Gemara[6], which mentions a few stories of Amora’im who preferred exclusions and avoided potential prohibitions; it is therefore recommended to utilize an exception instead of attempting to fulfill the Mitzva and risking violating the transgressions.
Practically Speaking
The remainder of this article will focus on how to setup one’s payment agreement to avoid any possible transgressions. This can be done in one of two ways:
The employer can stipulate a clause in the employment agreement that the employee agrees to wait for his payment until after the “Bal Talin” time passes. Even after making this clause one should still be careful to pay his worker as soon as possible to satisfy the Rabbinic obligation of paying as soon as one can. Additionally, since there are opinions that even when one is exempt from the possible prohibitions, one can still fulfill the positive Mitzva of “B’yomo titen s’charo” if he pays within that day/night period, one should try to fulfill the Mitzvah if possible, even in this scenario[7].
Another way to avoid the above prohibitions is by inserting a clause in the employment agreement that the wages of the period being paid for are not due on the last day of the segment, rather the payment that is due on the payday is only for the period that ended on the day before the actual payday[8]. In this way, the employer does not transgress “Bal Talin” for all of the previous days because the worker agreed to be paid past the day of the culmination of the work. He also does not violate “Bal Talin” for the last day because it was agreed that the employee will be paid at a later time for that final day[9].
It should be noted that there are opinions that maintain that “Bal Talin” does indeed apply to this latter method since now there is a new due date for the wages – even though it is later than the time the work was actually completed[10]. The first method we mentioned solves this problem because there is no specific time that the wages are due.
If one already hired his worker without using one of the above mentioned clauses, one cannot force the worker to agree to new terms in middle of the employment term. The employer can merely request that the worker agree to the new clause. If the worker agrees to the new clause, a Kinyan (valid transactional act) should be performed for the acceptance of the new terms.
Sources:
[1] Hoshen Mishpat 339:2
[2] The reason the Gemara in Bava Metzia 111a gives for this exclusion is because the employee is obviously consenting to be paid later. Accordingly, the Hafetz Hayim writes in his work Ahavat Hessed, that if the employee let’s his employer know that he has completed his job, in a manner that clearly indicates that he wants to get paid, then the employer is obligated to pay on that day. He proves this from the Sifra as well.
[3] H.M. 339:10. See Pithe Teshuva 7 who cites the Sha’ar HaMishpat that even when the employee didn’t demand pay, the employer nevertheless violates an issur. See Ritva in Bava Metzia (111a).
[4] Mishle 3:28, H.M. 339:8
[5] See “Halachos of Other People’s Money” footnote 22 and 83 and Helkat Binyamin, footnote 268
[6] Bava Metzia 111a
[7] Helkat Binyamin #93 and footnote 352 and 354
[8] Helkat Binyamin #76
[9] The employer may still distribute the same paycheck with the amount that includes the final day, it’s just that he is not obligated to pay the wages of the final day on that day.
[10] Helkat Binyamin (ibid.)