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By Dayan Yehonatan D. Hool, Yerushalayim
“For the Children of Israel are servants unto me, they are my servants, whom I took out of Egypt”[1].
Our miraculous liberation from the bondage of Egypt by the Almighty, was for the purpose of serving Hashem alone. The Gemara[2] derives from this verse, that we are commanded not to enslave ourselves ever again, even to a fellow Jew, so that we should always remain absolutely free to serve Hashem. There are several Halachic issues relating to this directive, which we will explore in this article.
Demeaning and Unnecessary Tasks
In the Torah, there are two specific negative commandments that limit what one may order an Eved Ivri – a Jewish slave (sold either by himself or to repay a theft) – to do. The first one is not to order him to do Avodat Aved[3] – not to work him as a slave. Rashi, quoting Hazal, explains this is a prohibition to ask an Eved to perform demeaning tasks that are traditionally relegated to slaves (such as carrying the master’s clothes behind him to the bathhouse).
The second prohibition is not to subjugate a slave to Avodat Parech – “do not subjugate him harshly”[4], which Rashi explains to mean that one may not order him to perform tasks that the master has no need for.
The Definition of “Avodat Parech”
Rashi, citing the Sifra, brings two examples of Avodat Parech. One may not command his slave “warm me this cup”, if he has no need for it, not may he order him to “hoe under this vine until I come”.
The Rambam[5] however, understands that there are two separate issues here that are prohibited under the classification of Avodat Parech. Firstly, as Rashi says, it is forbidden to ask the Eved to do unnecessary tasks, and secondly, it is forbidden to set him a task that has no defined end point, such as asking him to hoe the vines indefinitely. Thus the master may not instruct him to work “until the master returns,” for example, but must give the Eved a defined endpoint for the task, such as to work for a specific amount of time, or until a specified set of results is achieved.
Ordering a Free Man to Perform Demeaning or Worthless Tasks
It is important to note, that these prohibitions apply only to the owner of an Eved Ivri (a system which is not applicable in Halacha since the destruction of the first Bet HaMikdash). However, the Sifra rules that it is permitted to instruct a free, non-Eved to do demeaning or unnecessary work.
The Rambam[6] explains the reason for this distinction is that a slave’s spirit is despondent as a result of being sold, whereas one who is free is only doing any work out of his own free will, and may thus be ordered to do any task, as he still retains the right not to do it.
Is an Employee like an Eved Ivri or a Free Man?
It would appear from the words of the Rambam that in the case of an employee, who has not been sold into slavery, and therefore does not share the same low spirits as the Eved Ivri, it would be permitted to order him to do worthless tasks. Accordingly, a boss who sees an employee with spare time on his hands, may ask him to type up documents which he has no need for or other such unnecessary work.
However, it appears that the Ra’avad[7] disagrees on the opinion of the Rambam, as is evident from the Ra’avad’s comment on the Rambam’s interpretation of the second example of the Sifra. The Rambam understood that the Sifra was referring to a case in which the master instructs the Eved to perform a particular task without defining an endpoint. The Ra’avad disputes this claiming that surely if one hires an employee, one may set him tasks that have no defined endpoint, and as such why should it be any different in the case of the Eved?
It is clear from the Ra’avad’s argument, that an Eved and an employee are equal in this regard, and whatever is prohibited for a master to demand of his Eved would be forbidden for an employer to demand of his employee as well.
However, Ribbi Avraham Di Botton, in his commentary Lehem Mishne, disputes this assumption of the Ra’avad. The Torah prohibits a master from instructing his slave to do useless or demeaning work, he says, but this does not apply to a free person, as noted above, and thus an employee, who is not an Eved Ivri, may be ordered to do such tasks. Therefore, claims the Lehem Mishne, we cannot prove anything from an employee to the laws of an Eved Ivri.
The Basis of the Dispute
We must now understand the rationale behind this fundamental disagreement as to how an employee is regarded in Halacha. The Bet Yitzhak[8] explains that the Ra’avad, who is of the opinion that an employee is similar to a slave, sees an employee as being essentially “owned” to an extent by the employer, and thus with regards to the laws prohibiting worthless labor he has the same status as an Eved Ivri. The Mahane Efrayim[9] elaborates on the nature of this “Kinyan” – ownership – that the employer has over his employee, and brings many other authorities who concur with the Ra’avad on this point.
The Rambam on the other hand, regards an employee as simply being obliged to the employer but not at all owned by him, and thus rules that the labor limitations placed on a master do not apply to an employee whatsoever.
Domestic Servants
Many authorities, aside from the Lehem Mishne, side with the Rambam who does not view an employee as a free man. These include the Magen Avraham[10], who notes that it was customary to request Jewish domestic servants to do demeaning tasks, despite the prohibition of asking an Eved Ivri to perform such tasks.
He suggests two reasons for this: firstly, it is agreed upon at the time of employment and thus the servant knows and agrees in advance, and secondly, the aforementioned Sifra does not consider employees as “slaves” but rather as free individuals. this appears to be the conclusion of the Magen Avraham. According to the Ra’avad and the Rishonim that side with his opinion such type of labor should be prohibited. It is important to note, that according to the Magen Avraham’s first reason, only labor that was assumed at the time that the employee was hired would not fall under the prohibition of Avodat Parech.
The Ethical Imperative
It is worth noting, that aside from what is technically permitted from a purely Halachic point of view, there is a general attitude that the Torah expects us to employ with regards to these matters, above and beyond the letter of the law.
In this context, Rabbenu Yona[11] writes that one should refrain from requesting any tasks, even from a “free” person, if there is a concern that they will carry out your wishes not out of genuine desire but because they are either too afraid or embarrassed to refuse.
Similarly, Ribbi Yehuda HaHassid outlines a few general instructions with regards to employees in his classic work, Sefer Hassidim[12]:
“If one hires an employee to do some work, or to teach his children, or other such matters, he should not trouble him excessively, or more than he agreed with him to do at the outset. One should not ask anyone to do something that one knows he cannot do; for example, if you know that the employee is incapable of travelling more than a certain distance, do not ask him to travel further, even if he agrees to do so”.
Sources
[1] ויקרא כה, נה
[2] קידושין כב ע”ב
[3] ויקרא כה, לט
[4] שם מג
[5] הל’ עבדים פ”א ה”ו-ה”ח
[6] שם ה”ז
[7] שם
[8] או”ח סי’ לב
[9] הל’ שכירות פועלים סי’ א’
[10] סי’ קסט ס”א
[11] שערי תשובה ש”ג אות ס’
[12] סי’ תתרעד