Ancient Jewish History: Biblical Labor Law
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).
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).
Sources: Encyclopaedia Judaica. © 2008 The Gale Group. All Rights Reserved.
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