LABOR LAW

In Scripture

Two fundamental principles relating to the laws of the hired servant are enjoined in the Pentateuch. Firstly, the master's duty to pay the wages of his servant on time: "The wages of a laborer shall not remain with you until morning"; "You must pay him his wages on the same day, before the sun sets" (Lev. 19:13; Deut. 24:15); and secondly, the servant's right to eat from the produce of the field while he is working: "When you enter your neighbor's vineyard, you may, if you desire, eat your fill of the grapes.… When you find yourself amid your neighbor's standing grain, you may pluck ears with your hand" (Deut. 23:25, 26). So too the liberal pentateuchal laws concerning the Hebrew bondsman served as an important source for the development of labor law in later times. Other scriptural passages, even if not specifically related to the matter of master and servant, have also been relied upon by the scholars in support of labor laws, especially the enjoinder, "For it is to Me that the children of Israel are servants" (Lev. 25:55).

Hired Servant and Independent Contractor

The distinction between a hired servant and an independent contractor is one of principle: Whereas the former is hired for a specific period, the latter is hired for a specific task (Maggid Mishneh, Sekhirut, 9:4; cf. the Roman law distinction between locatio conductio operarum and locatio conductio operis). The time factor in the hire of a servant has the effect of tying him to his work for fixed hours during which he cannot choose not to work, whereas the independent contractor may work as and when it pleases him (Resp. Maharam of Rothenburg, ed. Prague, no. 477). Hence an element of slavery attaches to a hired servant, while a contractor "is not a slave except unto himself" (Rashi, BM 77a).

The Contract of Hired Service

The contractual tie in an agreement for the hire of personal services is effected through one of the recognized modes of *acquisition, such as kinyan sudar. Typically, however, the tie is effected by commencement of the work (BM 76b; Nov. Ramban thereto) or by the master pulling (meshikhah) the servant's tool of trade (R. Tam, Tos. to BM 48a; see also *Contract). When the master is a public body the contract requires no kinyan and a verbal agreement suffices (Mordekhai, BM nos. 457, 458). A service contract is not susceptible to specific performance, i.e., the party in breach cannot be compelled to carry out his undertaking. The master cannot be compelled to employ the servant against his will, since only the master's property (mamon) and not his person becomes subjected in the servant's favor (Resp. Mahari'az no. 15). The servant, on the other hand, cannot be compelled to work against his will, since the law is that a worker may withdraw from the employment even in the middle of the day (BM 10a; see also below); even if his withdrawal should involve irretrievable loss to his master (see below), he will not be compelled to work, but the loss may be recovered out of his property (Ḥazon Ish, BK no. 23:6). This is also the position with an independent contractor, who cannot be compelled to carry out his undertaken task (Mahariḥ to Piskei ha-Rosh, BM 77a). In the circumstances, the tie between the parties to a service contract is a loose one in its legal consequences (TJ, BM 6:2), with the result that it became customary for such parties to bind themselves to each other in various ways aimed at precluding the possibility of withdrawal, e.g., by *oath, handshake, or imposition of a fine upon the retracting party.

Personal Nature of the Service Contract

A service contract falls into the category of agreements of a personal nature. Therefore, if the master has engaged the servant to work in his field, he cannot compel him to work in a neighbor's field, even if the work there is lighter (Tosef., BM 7:6). Similarly, the servant is not entitled to substitute another worker for himself if the master should want his particular services (Resp. Maharit, vol. 2, YD no. 50). Generally, however, it will be presumed that the master is not particular about the matter, save as regards a position of a public nature which the holder cannot pass on to another without the consent of the public (Mordekhai, BK no. 108).

The master may change the nature of the servant's work except if the servant has been hired for a specific task, in which case it cannot be changed against the servant's will, whether for lighter or heavier work (Nov. Ramban, BM 77a). If the task for which the servant has been hired is completed before expiry of the hire period, his master may keep him engaged on some other but not heavier labor (Tosef., BM 7:6; BM 77a); in the opinion of some scholars he may be given heavier labor than before but with an increase in remuneration (Maharam of Rothenburg, in: Mordekhai, BM no. 346, ḤM 335:1; Ramakh, in Shitah Mekubbeẓet, BM 76b). In similar circumstances the servant may not, however, in the absence of prior stipulation, demand that he be retained on some other labor (Tosef., BM 7:6) but only claim the wages of an unemployed worker (sekhar po'el batel) or the full stipulated wage until expiry of the period of his hire (see below).

Remuneration

In the absence of express agreement, it will be presumed that the parties intended a contract of service for remuneration, on the assumption that a person does not work for nothing, and the measure of remuneration will be determined in accordance with local *custom (see *minhag; Mordekhai loc. cit.); in a place where laborers are hired at different rates, remuneration will be according to the lowest, since people generally have in mind the cheapest possible rate (Alfasi to BM 76a).

Obligations of the Parties

It is the servant's duty to do his work in a faithful manner, hence he may not absent himself from work without adequate cause lest he become liable to dismissal as well as loss of remuneration for the period he has not worked. For the same reason he has to work with all his strength (Yad, Sekhirut 13:7) and may not go hungry or otherwise afflict himself, nor engage in any additional work, whether inside or outside his original working hours (Tosef., BM 8:2). If he should do so without his master's authority, the latter may demand a refund of his earnings (Resp. Rashba, vol. 71, no. 1042). The prohibition against additional work is only applicable, apparently, to a servant obliged – by agreement or custom – to work a full day for his master (see below). The servant must furthermore comply with his master's instructions insofar as these do not deviate from their agreement or local custom (Tanna de-Vei Eliyahu Raza 15:5; Resp. Israel of Bruna, no. 242).

The master's main obligation is to pay the servant's wages on time, i.e., at the end of the day or month as the case may be, since "the hire is only payable at the end" (BM 65a), unless otherwise agreed upon by the parties or decreed by custom (Mordekhai, BB, no. 468). The duty to pay the servant's wages on time is a positive command and delay in payment also amounts to transgression of a negative command (see above). Wage delay (halanat sakhar) is constituted when payment has been withheld for more than 12 hours after it is due (BM 111a). The prohibition is not transgressed, nor is the master in default, unless and until the servant has demanded the payment of his wage (Sifra, Kedoshim 2:9–12) and the master has the ready cash to make it (BM 112a), or has chattels which he can sell without loss and fails to do so (Nov. Ritba, BM 111b). Here too the parties may contract out of the law with regard to the time of wage payment (Sif. Deut. 279), and they may also stipulate that the master shall not be in transgression of the prohibition against wage delay if he should fail to pay on time (Sefer Ḥasidim, no. 1066). According to some scholars, wage delay entitles the servant to claim compensation for what he could have earned from his wages if he had been paid on time, but this is prohibited by most scholars as tantamount to interest (Or Zaru'a, BM no. 181).

The servant must be paid in cash and not chattels (BM 118a), although there is an opinion that payment may be made in commodities (foodstuffs) which the servant is in need of (Maharam of Rothenburg, in: Mordekhai BK 1), and the latter may also waive his right to payment in cash. In case of dispute over whether or not the master has made payment of the servant's wages, the servant will be entitled to payment thereof upon delivering an oath – this is a rabbinical enactment in favor of the servant (Shev. 45a). The master is generally not obliged to provide his servant with food, save as otherwise agreed between them or decreed by custom (BM 83a), in which event the master may choose to provide an allowance instead of food (Resp. Maharsham, pt. 3, no. 54). So far as a servant working in the field is concerned, he is entitled to eat from the produce, but only while he is working (see above; BM 87a).

The master may not employ his servant outside lawful working hours, which – in the absence of an agreement between the parties – are determined by local custom (BM 83a; Nov. Ritba thereto). Scripture hints at the ancient custom of regarding a working day as lasting from sunrise until the appearance of the stars (Ps. 104:19–23), and this is known in the Talmud as a workday of a worker – de-oraita (BM 83b).

Period of Service

If not explicitly agreed upon between the parties, the duration of the service period is determined by custom (Divrei Malkiel, pt. 3, no. 151), and in the absence of such this is a matter within the judges' discretion (Ḥazon Ish, BK, sec. 23). Cancellation of the service contract is subject to prior notice within a reasonable time in accordance with local custom and conditions (Ḥazon Ish, loc. cit.). In the case of certain public appointments it was the custom to regard an appointment without a fixed period as one for life (Ḥatam Sofer, Resp. OḤ no. 206).

When the service contract is for a specified period, it will terminate on the date specified without need for any prior notice. In the case of public appointments there is an opinion that the servant cannot be dismissed, notwithstanding stipulation on the duration of the appointment, unless this is in accordance with local custom or an express agreement between the parties (Ḥatam Sofer, Resp. loc. cit.; Ḥemdat Shelomo, OḤ no. 7); another opinion is that the continued employment of a public servant after the specified date for termination of his service must be regarded as an implied agreement to employ him for an additional period equal to that originally agreed upon (Mishpat Ẓedek, vol. 2, no. 77). A public servant who has grown old has the right to avail himself of an assistant (mesayye'a) at the public expense (Resp. Rashba, vol. 1, no. 300). There is also a custom that a public position passes through inheritance to the holder's son, if he is worthy of it, in order that the widow's existence may be secured (Sho'el u-Meshiv, vol. 3, pt. 1, no. 154; Imrei Yosher, vol. 1, no. 169). A service contract may be terminated at any time by mutual consent of the parties. According to some scholars, a formal act, such as the signing of a deed, is required for this purpose (Resp. Maharam of Rothenburg, ed. Prague, no. 77), while others hold that word of mouth alone suffices (Resp. Radbaz, pt. 1, no. 88).

Withdrawal by the Master

Justifiable grounds for the master's withdrawal from the contract are the servant's neglect, i.e., his failure to discharge his duties in a proper manner; his unfitness; and improper conduct on the servant's part, even outside his employment. If on account of the improper discharge of his duties or his unfitness the servant should cause or be likely to cause his master irretrievable loss, the latter may dismiss him without any prior warning (BM 109a). Circumstances amounting to improper conduct on the servant's part and warranting his dismissal – even if not directly related to his employment – include the fact that he is a reputed thief or under suspicion of committing theft (Rema ḤM 42:6) or an offense against morality (Hai Gaon, in: Sha'arei Teshuvah no. 51).

The master's withdrawal is not justified on the grounds that it is possible for him to find another worker who costs less (BM 76a and Rashi thereto) or a better one (Rosh Resp. no. 104:4), or because of the existence of enmity which is not attributable to the servant; nor is his withdrawal justified on the ground that from the beginning he had no need of the worker's service (BM 76b), or because he has completed his work prior to the termination of the contracted period of employment (BM 77a). In the latter case there is neglect on the master's part since he ought to have foreseen that he would not be in need of the worker's services.

If the master interrupts the employment without justifiable cause, he is liable for the full wages of the servant until the contracted period of service has expired (BM 76b and Rashi thereto). At the same time, however, a worker who sits idle after the master has retracted is only entitled to the remuneration of an "unemployed worker," since it is presumed that the worker himself prefers not to work and to receive less rather than to work and receive his stipulated wage. The wage of an "unemployed worker" is half his stipulated wage (Rashi Resp. no. 239). If the worker is the kind of person to whom idleness is a greater trial than doing his work, the master will be obliged to pay his full wage (BM 77a). Liability for the servant's wage in the event of the master retracting, as described above, is only imposed on the master if the servant is unable to find alternative employment (Nov. Naḥmanides, BM 76b). In the event of the master retracting on account of inevitable accident (see *Ones) affecting either himself or the work, he will not be liable to pay the servant for the period of his idleness, not even the wages due to an unemployed worker, unless the mishap is of a general, statewide nature (BM 77a and Piskei ha-Rosh thereto; Rema ḤM 321:1).

Compensation on Dismissal or Severance Pay

On dismissing his servant, even after the expiry of the contracted period, the master is obliged to pay him compensation. This law, based on the pentateuchal enjoinder of *ha'anakah (i.e., the grant payable by the master to his Hebrew bound servant), began to evolve in the post-talmudic period and in recent decades has achieved full legal recognition, particularly in the decisions of the rabbinical courts of the State of Israel.

Withdrawal by the Servant

In the event of the servant's withdrawal from the contract in the midst of his employment, it is necessary to distinguish between the case where this will not result in irretrievable loss – i.e., the master can afford a delay in the work until he is able to find another worker on the same terms – and the case where delay in the work will cause the master irretrievable loss. There is a tannaitic dispute concerning the case where the servant's withdrawal does not involve irretrievable loss but the master wishes to avoid delay and immediately hires other workers at a higher wage; the general opinion is that the master must pay the servant for the work already done on a pro rata basis, and R. Dosa holds that the master may deduct from what the servant has so far earned the loss he has incurred through hiring a new worker at a higher wage (BM 76b). The amora Rav ruled that the halakhah followed Dosa in the case of a contractor and the sages in the case of a hired servant (BM 77a). For since a hired servant is to some degree a slave (see above) he may withdraw his labor even in the middle of the day, as it is written (Lev. 25:55): "For unto Me, the children of Israel are servants," and not the servants of servants (BM 10a). In this case too the hired servant may waive his right to withdraw his labor (Zera Emet, vol. 2, YD no. 97).

If the servant's withdrawal involves irretrievable loss, the master will be entitled to hire another worker to complete the work and to deduct from the servant's earnings the wage increment payable to the new worker; in this case it is also permissible for him to "mislead" (lehatot) the servant – i.e., to promise him an increased wage as an inducement to continue the work, yet remain liable only for the wage originally agreed upon (BM 76b). According to the original law, the master was entitled to hire workers against the servant "up to 40 or 50 zuz," i.e., to recoup from the retracting servant several times his stipulated wages; but in order to limit the servant's liability, it was laid down by R. Naḥman that the master might only recoup an amount not exceeding his servant's wages (BM 78a), i.e., wages due to the servant for work done until his withdrawal (Rashi thereto); if the master is in possession of the servant's bundle, he will be able to recoup from it the total amount of the increment. A worker retracting on account of ones does not lose his wages for the period he has worked, even where his withdrawal has resulted in irretrievable loss (BM 77b).

The Servant's Liability to His Master

The servant's liability for pecuniary loss caused to his master is equivalent to that of a *bailee for reward, whether in respect of theft and loss or any other kind of damage (BM 80b, 82b). His liability is greater than that of a tort-feasor, since the latter is only liable in the case of relative ones (which is like avedah, i.e., loss) and exempt as regards absolute ones (which is like theft), while the servant is liable in both cases (Tos. to BK 27b; see also *Torts). The servant is liable for damage resulting from his departure from custom or the terms of his employment (BK 100b; Tosef., BK 10:29), from his failure to take proper care (BK 98b), and from his lack of familiarity with the work (BK 99b). The servant is also liable for damage caused in the course of his work to the chattels of his master, even unintentionally (BK 99b). As regards breakages in the transportation of goods by porters, R. Meir regulated that the servant be exempted from liability upon delivery of an oath that these were not intentionally caused by him (BM 82b). A servant causing his master damage not only has to pay for this, but also forfeits his remuneration (BM 58a).

The sages of the Talmud were at pains to modulate the severity of the servant's liability, and with reference to damage negligently caused by porters Rav decided that the latter should not only be exempt from liability but also entitled to payment of their hire – this in reliance on Proverbs 2:20 and the equitable rule of li-fenim mi-shurat ha-din (BM 83a and Rashi).

The Master's Liability to the Servant

The master's liability for damage suffered by the servant flows from a breach of agreement or custom, or from the general law of tort. Thus a master who burdens his servant to "carry on his shoulder" a heavier load than that agreed upon or customary will be liable for any resulting harm suffered by the latter (Tosef., BM 7:10; Beit ha-Beḥirah, BM 80b).

As for the master's liability to his servant in tort, it will be necessary to distinguish whether the harm suffered by the servant directly is attributable to the master or not. Thus if the master causes harm to the person or property of the servant, e.g., damage suffered by an agent as a result of the sale of his principal's defective goods, the master will be liable therefor (Tashbeẓ, 4:2, 17; see also Resp. Mabit, vol. 2, pt. 2, no. 156); if, however, harm is suffered by the servant within the course of his employment which is not caused by the master, the latter will be exempt from liability for the damage done, whether to the servant's person or property, as happens, for example, when a spark flies from under a forger's hammer and sets alight his heap (Sefer Teshuvot ha-Rashba ha-Meyuḥasot leha-Ramban no. 20). Similarly, the principal is not obliged to ransom his paid agent when he is taken captive en route (Resp. Mabit, vol. 2, pt. 2, no. 156), nor is there any obligation in respect of an agent killed while he is on his master's business but not because of the latter. In the latter case, however, the posekim laid down that the master, because of his connection with the occurrence of such a disaster, should be obliged to take upon himself an expiation and to compensate the heirs of the deceased as a matter of equity (Resp. Maharyu no. 125).

In the State of Israel

Labor legislation in force in the State of Israel is a composite of three statutory sources:

(1) Ottoman: a number of paragraphs dealing with labor law are included under the chapter "Hire" in the Ottoman Civil Code (Mejelle);

(2) Mandatory: in particular the Safety at Work Ordinance (New Version 5730–1970);

(3) Legislation of the Knesset, replacing most of the Mandatory legislation on the subject with original laws, of which the following are the most important: Annual Leave Law, 1952; Hours of Work and Rest Law, 1951; Wage Protection Law, 1958; Apprenticeship Law, 1953; Youth Labor Law, 1953; Employment of Women Law, 1954; National Insurance Law, 1953; Collective Agreements Law, 1957; Settlement of Labor Disputes Law, 1957; Employment Service Law, 1959; Severance Pay Law, 1963; Male and Female Workers (Equal Pay) Law, 1964; Labor Courts Law, 1969. In addition, labor law in Israel has been further interpreted and evolved in the case law precedents of the Supreme Court. These, like the above Knesset laws, reflect the substantial influence of Jewish law, noticeable particularly in the Wage Protection Law, 1958 and Severance Pay Law, 1963 (see Elon, bibl.).

The Labor Courts Law sets up a special judicial hierarchy, at both regional and national levels, for airing disputes between master and servant, without right of appeal to the regular courts. The existence of a special judicial machinery in labor matters is also to be found in the history of Jewish law. In the European Jewish communities of the late Middle Ages, and within the framework of the various artisans' and traders' associations, special courts were elected in accordance with articles approved by the communal rabbis.

[Shillem Warhaftig]

LABOR LAW DECISIONS IN ISRAEL

As stated, the State of Israel has a labor court system with jurisdiction over labor-related matters. Some of the most important labor legislation in the State of Israel, such as the Wage Protection Law, 5718–1958, is based on Jewish law, and the labor courts rely on principles from Jewish law in deciding labor issues brought before them. This article presents several cases brought before the Israeli Labor Courts and the Israel Supreme Court which were adjudicated having consideration for the position of Jewish law.

The Prohibition on Delayed Wage Payments for Contracted Labor and the Distinction between a Sales Contract and a Service Contract (Ḥozei Kablanut). In Zikit v. Eldit, the Israeli Supreme Court (CA 368/77, Zikit v. Eldit, 32(3) PD 487) was required to examine this issue. In that case, a company provided a quantity of cloth for printing patterns on cloth to be used for bathing suits. The printing was defective, and as a result the company that owned the material was injured. The Court was required to decide if the transaction was a sale, in other words whether the printing company sold a product, in which case the provisions of the Sales Law, 5728–1968, would apply; or was the printing company under contract for services (kablanut, hereinafter "contractorship agreement") and as such the Contract for Services Law, 5734–1974 would apply. The court (per Justice Menachem Elon) pointed out that "when we engage in the interpretation of sales and contractor law, enacted by the State, we must first and foremost examine the position of the Jewish law regarding the problems brought before us" (ibid., p. 493).

The Court cited the responsum of Rabbi Aharon Sasson (Resp. Torat Emet, 119), which considered whether the commission of work to a craftsman (in that case – ordering a ketubbah (marriage contract) from a scribe) should fall under sales or contract law principles, which would affect the application of the prohibition against delaying wage payment. The prohibition of delaying the wage payment is not limited to client commissioned work, but also applies to contractorship agreements: "Inasmuch as contractorship is like hiring [a worker] and it obligates him to pay him on time" (Maim., Yad, Sekhirut 11:3).

Rabbi Aharon Sasson did not consider the scribe from whom the ketubbah was ordered a contractor, because "the contractor receives the object from the one who orders the work and prepares accordingly; this does not confer any rights or ownership in the object, and he is therefore referred to as a contractor [one engaged in providing services to a client's object]." In contrast, when the workman also supplies the materials, their agreement may be considered a sales contract and not a contractorship agreement. In such a case, the non-payment is not a delay in the payment of wages, but a debt for which there is an obligation to pay, but the law of delay in payment of wages does not apply (Zikit decision, p. 494).

The court goes on to discuss the responsibility of the hired craftsman to pay for damages caused to an object given to him for repair (Yad, Sekhirut 10:4; Zikit decision pp. 496–497).

Employer's Responsibility to Protect the Well-Being and Safety of His Employees.

Punishing a person who indirectly or accidentally caused another's death to exile in a city of refuge (see *City of Refuge) is not applicable today, yet the responsa literature deals with situations of an employee's or an agent's death while employed or under contract. A talmudic aggadah (Sanh. 95a) relates that King David was punished because his actions, albeit indirectly, resulted in the deaths of the priests of Nov, Doeg, Ahitophel, Saul, and his three sons. David did not perform any active deed to cause these deaths, and the decisors (posekim) infer from this aggadah, by the rule of a fortiori, that an employer whose employee is injured while performing duties, is not liable under tort law, but he is required to atone and repent (kapparah and teshuvah), and is even to give charity to the orphans of the victim or to other indigents (Responsa Mahari Weil, 125; Resp. Rabbi Akiva Eiger, Tanina ed., 3; see *Divine Punishment). Other halakhic decisors distinguished between a paid employee, for whom the employer is not obligated to atone for the bodily injuries, and the unpaid worker (Responsa Ẓemaḥ Ẓedek, 6). Rabbi Ouziel (Resp. Mishpatei Ouziel, 4 – ḤM, no. 43), rules that indeed by law, when a worker is injured or killed, the client is not liable for his worker's damages or death, but only obligated to atone, and there is no legal recourse for receiving monetary compensation from the employer. However, Rabbi Ouziel emphasizes that in our times, owing to industrial development there are many more dangers for workers and the current situation requires far more caution; "the employer is cautioned by the Torah to do all that is possible to protect his workers from the risk of death or injury, as it is written: 'And you shall make a parapet for your roof that you shall not bring blood upon your house' (Deut. 22:8), which includes any hazard that is likely to harm, such as a dangerous dog and a shaky ladder, etc. (BK 15, and Sh. Ar., ḤM 327:5). Thus, it is the obligation of the employer or the contractor, to take all precautions to ensure that the work environment and conditions are free of hazard or danger that may cause any sort of disaster." Rabbi Ouziel adds that in our times, when it is accepted practice to insure employees against injury, an employer would be halakhically required to insure his employees.

These statements regarding the employer's responsibility for the safety of his employees, were cited in the decision of the Israeli Supreme Court in the Pinkas case (Crim. A 478/72 Pinkas v. The State of Israel, 27(2) 617, pp. 627–629; per Justice Kister), as inspiration for the criminal liability of an employer who sent his worker to carry out a job in a dangerous and negligent manner as a result of which the worker was killed.

Dismissing an Employee Suspected of Stealing.

Rabbi Moses Isserles, in his glosses on Shulḥan Arukh (ḤM 421:6), rules that an employer who suspects that his worker may have stolen from him is entitled to dismiss him, provided that he has proven grounds for his suspicions before a court, or if the employer has solid proof of such theft, or if the worker has the reputation of being a thief (Resp. Divrei Malkhiel, III, 151–152).In the Resp. Divrei Ḥayyim (1, YD, 11), it was held that mere suspicion is not sufficient, and only where there are witnesses to a theft is it possible to dismiss the worker. These rulings indicate that the employer's concerns and suspicions do not constitute sufficient grounds for dismissing a worker; however, when these misgivings are substantiated by evidence, they are grounds for dismissal.

The Regional Labor Court of Tel Aviv Jaffa (LF 32309/98, Yitzchak v. The Aircraft Industries; Judge Tennenbaum) adjudicated a case where a worker was dismissed after being suspected of stealing. The worker filed a claim for the entire amount of his severance pay, and the question of his employer's justification for dismissal was raised. The court based its decision on principles of Jewish law, and examined the degree to which the robbery had to be proved to constitute grounds for dismissal and the extent of his entitlement to severance pay.

Employee Disclosure of Trade Secrets.

Jewish law's approach to business competition is based on the principle that, with the exception of some specific cases, free competition should not be interfered with (see: *Business Ethics).

Nevertheless, even under Jewish law, an employee who during his employ was privy to privileged information and then leaves his employ may not divulge such information, even where his employment contract does not specifically stipulate this; Rav Samuel Wozner states the following (Resp. Shevet ha-Levi, 4:220): "It is clear to me that a worker who works in a place where they work with secret things, or use instruments that are still considered secret, or even in an activity related to an invention, is prohibited from making a copy for himself or for others and this falls into the legal category of stealing, even when there was no special contractual stipulation, because such matters are self-understood and one should be very careful about revealing them."

According to another approach, a worker is permitted to use his employer's trade secrets, provided that he paid the employer for their value; and if he has not paid him the value of the secret he is interested in using, he is forbidden to use it.

The Regional Labor Court in Haifa (Lab. App. 2999/03, Carmel v. Ben Shimon; per Judge Werbener) cited these rulings when adjudicating a case where an employee's former employers requested a court injunction against a competing business to prevent it from employing the said employee, because of their concern that he would disclose their trade secrets.

Firing an Employee When His Term of Employ Has Not Been Extended.

The responsa of Rabbi Moses Feinstein deal with this subject in detail. Rabbi Feinstein holds that even if the employee is hired for only one year in a place where one usually annually renews employment contracts every year, and he continues to work there, even without a renewed contract, it is still not permissible, absent of other grounds, to dismiss him (Resp. Iggerot Moshe, ḤM 1:76). In another responsum Rabbi Feinstein deals with the question of an employee for whom no extension of his term of employment was established and whether it was permissible to fire him without grounds. Rabbi Feinstein answers that it is not permissible to fire an employee without clear cause, even when the policy at the specific place of employment regarding the hiring of employees for an unlimited period of time is unclear (ibid., 75).

The Regional Labor Court in Tel Aviv-Jaffa (LF 8338/00 Krigsman v. Reshet ha-Ganim shel Agudat Yisrael; per Judge Tannenbaum) dealt with this subject, and quoted extensively from these rulings of Rabbi Feinstein.

The Possibility of Limiting the Employee's Work Hours.

The basic approach of Jewish law to this question is set forth in the Tosefta (BM 8b) which states: "A worker is not permitted to do his work in the night and to hire himself out during the day…." The rationale for this edict is explained by Maimonides (Yad, Sekhirut 13:6; Rema, ḤM 337:19): "… Such behavior would constitute stealing from the employer, for his [the employee's] strength will give out and his mind will be weakened and he would not do his work with energy."

Teachers and teaching hours have received special treatment in this matter from both the Maharam of Rothenburg in his responsa, and the Rashba (Responsa Maharam of Rothenburg, 667; Resp. Rashba, 7:516). They emphasize that teachers can be prevented from contracting in supplementary work, if such work would hamper their ability to teach in an appropriate manner.

The Talmud (BB 21a), when discussing the community's responsibility to organize an educational system, explicitly limits the number of students allowed for each teacher. Raba rules that one teacher should not teach more than 25 children. When there are more than 25 students – up to 40 – an additional person is seated with the teacher to assist him and when there are more than 40 students, the community must provide two teachers (Yad, Talmud Torah 2:5). Such limitations insure the proper fulfillment of the community's duty to procure enough teachers, for an appropriate, functioning educational system, and are not aimed at limiting the teachers' employment opportunities. However, other community regulations establish limitations and prohibitions regarding the number of students a teacher may accept (regarding these regulations, see Bibliography, Shchipinsky).

In this context, the Regional Labor Court of Tel Aviv-Jaffa (LF 913517/99 Asher v. The State of Israel; per Judge Tannenbaum), was requested to invalidate a provision in the collective labor agreement applicable that limited the number of instruction hours a teacher was permitted to work to 140% of a full-time position.

Dismissing a Worker Who Has Reached Retirement Age.

The basic approach of Jewish law regarding employment in public positions is that a person should not be removed without good cause (Resp. Rashba V. 283). Rabbi Joseph Caro (Sh. Ar., OḤ 53:25) ruled as such regarding a cantor. Rabbi Israel Meir of Radin stated that this ruling applies to all positions, "so that they [the employees] should not suspect that some defect was discovered in them" (Mishnah Berurah, ad loc. subsection 73).

Rabbi Yehiel Michal Epstein deals with the appointment of various community officials, and ruled as follows (Arukhha-Shulḥan, ḤM 2:333.15):

"… This was the custom in all of the Jewish Diaspora that from his appointment (in the letter of appointment to the Rabbinate) the rabbi is employed for the city's benefit, this was done so that the rabbi would not change his mind [and resign from his position] over the time … but the people of the city can never change their mind, unless some taint was found in him. This is also the law regarding a cantor and a sexton and all kinds of other public appointments – that as long as he is not found wanting, he has a lifetime position. And this is the custom …"

The principle applies not only to those of community related positions, such as a rabbi and a cantor, but also those of any public position; one who holds a position has a presumptive right to it (Rabbi A.I. Kook, Resp. Oraḥ Mishpat, ḤM, 20).

In the responsa of Rabbi Ezekiel *Landau, there is explicit reference to the chronological age of retirement (Resp. Noda Bi-Yehudah, YD, Tanina ed., 1). Rabbi Landau was asked about the law regarding a ritual slaughterer whose "hands shook," in other words, someone physically incapable of fulfilling his responsibilities. In his response, Rabbi Landau ruled that such a person must be removed from his position, yet he refused to apply this ruling retroactively – i.e., he did not disqualify the meat this ritual slaughterer had slaughtered. In his discussion Rabbi Landau rejects disqualifying shohetim at the fixed age of 80, exclusively on the basis of their having reached that age.

These rulings demonstrate that Jewish law rejects mandatory retirement based exclusively on age. A person's age is only significant to the extent of imposing a duty to examine the employee's functioning at an age at which might be assumed that his age affects his functioning. However, where the retirement policy obligates a person to retire after a specified period of time, that custom mandates one in such a position to leave his job when he reaches that specified time (Resp. Rashba, 5.283).

The Regional Labor Court in Tel Aviv (LF (Tel Aviv) 912492/99 Meor v. The Open University; per Judge Tannenbaum) thus adjudicated in an action filed by an employee who had been dismissed upon reaching the age of 65.

The Obligation to Provide an Employee Work.

The Talmud (BM 77a) establishes that an employer who hires a worker for a fixed period of time, and does not provide him work for part of that period of time, is still obligated to pay him [for the entire period]. The exception to the rule is when the worker, upon accepting the job, knew that circumstances might arise that would prevent the employer from providing him work. In such a case, if in fact the employer failed to provide him work for the entire period, the worker is not entitled to full wages. If the work is terminated during that period and the employer is no longer able to employ him, if he is able to provide him with work, no more difficult than the work for which he was originally employed, the employer should allow the employee to perform such work. If there is no work available, the halakhah depends upon the type of worker: if the worker is accustomed to hard work and the absence of work will weaken his body, not working is tantamount to damage, and the employer must pay him his full wages. If the worker is not such a worker and he enjoys the "holiday," even if it is forced upon him, the employer must only compensate him for his loss of time.

The halakhic literature provides definitions of workers for whom not working causes distress and for those who enjoy being unemployed. Regarding teachers, it was ruled that unemployment is a source of distress (Resp. Rashba attributed to Nahmanides, 1). It was ruled that when a rabbi is hired to deliver Sabbath sermons in the synagogue, which brings him joy and fulfillment, being unemployed distresses him. In contrast, a rabbinical judge or regular judge who rules in matters of ritual law (issur ve-heter) because his work is difficult and exhausting does not enjoy his work (Resp. ha-Rama, 50).

In one unusual case, specific performance of the employment contract was imposed on the employer, such that it obligated him to continue providing work for the employee, and not suffice by paying of his wages while leaving the employee with nothing to do (Resp. Mikhtam le-David, ḤM, 17; 18th century).

The Israeli National Labor Court considered the question of whether an employer was obligated to pay the full salary (with social benefits) or just the basic salary without these added elements in a case when he told his employee that he would continue to pay him a salary, but that he should stay home and not come to work (DBA 4–21/51 The Histadrut v. Tahel, 23 PDA 3; per Judge Steve Adler).

The court referred to Jewish law sources cited above and pursuant to the provisions of the Foundations of Law Act, 5740–1980, and dealt with whether and how an employer is required to compensate the employee who is not actively working for him. Based on the aforementioned cases, the Court based its ruling on the tremendous importance placed by Jewish law on the effect of idleness on an employee.

An Individual's Obligation to Earn a Living from His Efforts.

A positive approach to the value of work is found in the earliest sources, i.e., the Bible. The purpose of Adam in the Garden of Eden immediately after his creation is stated as "to work it and keep it [the Garden of Eden]" (Genesis 2:15). The Book of Proverbs expresses praise for the laborer: "He who works his land shall have plenty of bread …" (Proverbs 28:19), "Go to the ant, sluggard; consider her ways and be wise" (Proverbs 6:6). Talmudic literature, refers to labor of the six days of the week as a duty that complements the proscription of working on the Sabbath: "'Six days shall you work' – Rabbi says this is a complementary commandment (to the commandment regarding the prohibition of working on the Sabbath) for Israel; parallel to the positive commandment of the Sabbath, Israel was commanded regarding doing work" (Mekhilta d'Rabbi Simeon bar Yoḥai 20:9). In the continuation of this derashah, extolling the virtue of work, the Tosefta (Kid. 1:11; Kid. 29a) states that the father is obliged to teach his son a trade; Rabbi Judah adds that "he who does not teach his son a trade – in the end, will teach him to be a robber." Notwithstanding, Midrashim also present the approach that work is a default option, and the optimal situation is, "when Israel does the will of God … their work is done by others" (Mekhilta d' Rabbi Ishmael, V'Yikahel, 1; TB Ber. 35b). There are differences of opinion regarding the preferred balance between Torah study and work. Rabbi Ishmael sees the performance of work as an obligation, to preclude a person's dependence on others: "Do with them as is the custom among people." In contrast, Rabbi Simeon bar Yoḥai expresses his concern that engaging in labor would completely marginalize Torah study, and therefore recommends learning Torah and relying on the work being performed by others. The amora Abbaye testifies that those who adopted the path of Rabbi Ishmael "succeeded," and those who adopted the path of Rabbi Simeon bar Yoḥai – "did not succeed" (Ber. ibid.). Many other teachings of tannaim, cited in Avot de-Rabbi Nathan, speak in praise of performing work because it averts poverty, rescues from sin, rescues from boredom, and rescues a person from being suspected by others, etc.

Halakhic literature does not formally adopt the Talmudic opinions regarding the obligation to work and to teach one's son a trade, but there are clear statements in praise of work and disparaging reliance on the kindness of others. Maimonides writes as follows: "…they say 'make your Sabbath a weekday and do not become dependent on others.' And even if a learned and respected person becomes impoverished, he should go and work, even menial labor rather than depend on others. It is preferable to skin dead animals than to tell people: 'I am a very learned man, I am a kohen – support me!' … Among the greatest sages there were woodcutters, loggers, and those who pumped water for gardens, ironworkers and coal choppers who did not ask for support from the public" (Yad, Mattanot Aniyyim 10:18). Maimonides writes the following about the relation between Torah study and work: "Anyone who decides to study Torah and does not engage in labor and is supported by charity, commits a desecration of God's name, and causes dishonor for the Torah, extinguishes the light of religion, causes harm to himself, and precludes his life in the world to come … and they have further commanded and said: 'Love labor and hate the authorities,' and any Torah [study] that is not accompanied by labor is destined to come to naught and to bring about sin, and the end of such a man will be as a thief" (Yad, Talmud Torah 3:10). However, later posekim disagreed with these words of Maimonides. Rabbi Simeon ben Ẓemaḥ Duran (Resp. Tashbeẓ 1,147) states that only in the first generations, in the period of the tannaim and the amoraim, could sages both study Torah and earn their living from labor. In our days, "the generations are less worthy" and this cannot be done, and therefore learned men may rely on the community funds. The statements in praise of labor and in condemnation of laziness were cited by the National Labor Court (AB 9100002/98 Barnea v. The Employment Service; per Judge Rabinowitz), to support its ruling that "one who wishes to be supported from public funds, must first make a reasonable effort to work and to support himself." Accordingly, the court upheld the decision of the Employment Service to deny unemployment compensation to any unemployed person who refuses positions offered to him.

LEGISLATION IN THE STATE OF ISRAEL

In addition to the laws mentioned above, a number of new laws that deal with labor law should be mentioned:

The Contract for Services Law, 5744–1974, codified the contractual obligations between one who orders work done and a contractor, including liability for defects and the right to withhold the property that is the object of the work until wage payment has been made.

The Minimum Wage Law, 5747–1987, codified the obligation to pay a specified minimum wage. This law also obligates monetary compensation when lower than the minimum wages were paid, and the criminal liability of the employer who pays less than the minimum wage.

The Prior Notice of Dismissal or Resignation Law, 5761–2001, establishes the obligation of giving prior notice of a prescribed term before terminating a person's employment (and correspondingly the worker's obligation to notify his employer a certain time in advance of his resignation). This law establishes the employer's duty to give an employee prior notice of his/her impending dismissal within a certain prescribed period of time, as well as the employee's duty to give his employer prior notice a certain period of time prior to resigning. The law also provides that an employer dismissing an employee without such prior notice is required to pay the employee an amount equivalent to his regular salary for the period of time prescribed, and that an employee who resigned without prior notice must pay his employer a penalty for the period during which the notice was not given (see *Ha'anakah).

[Menachem Elon (2nd ed.)]

BIBLIOGRAPHY:

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Source: Encyclopaedia Judaica. © 2008 The Gale Group. All Rights Reserved.