Shiur #26: Withholding Wages and the Employee's Soul

  • Rav Binyamin Zimmerman

 

 

Bein Adam Le-chavero: Ethics of Interpersonal Conduct

By Rav Binyamin Zimmerman

 

 

Shiur #26: Withholding Wages and the Employee’s Soul

 

 

Deprivation of Wages

 

In our last lesson, we introduced the mitzvot found in Parashat Kedoshim that relate to paying a worker on time:

 

You shall not withhold that which is due your fellow and you shall not rob; you shall not leave overnight the wages earned by a day laborer, until morning. (Vayikra 19:13)

 

We noted that the obligation to pay workers in a timely manner is repeated in Devarim (24:14–15):

 

You shall not withhold that which is due a day laborer who is poor and needy, [whether] of your brethren or of the stranger that is in your land, within your gates. On his day you shall give him wage, and let the sun not go down on it, for he is poor and he sets his soul on it, and let him not cry out to God against you, so that sin cling to you.

 

Having discussed the general outlook of the Torah regarding the employer–employee relationship, it behooves us now to dedicate some time to the specific prohibitions detailed here. What exactly is defined as deprivation of wages (oshek), and how does it differ from the prohibited act of leaving wages overnight (lo talin)? What is added by the verses in Devarim? Of particular interest is the rationale that the Torah provides there – “he sets his soul on it” – as well as that the cry of a mistreated employee has such devastating consequences for the employer.

 

As we have discussed, the Gemara (Bava Metzi’a 111a) views deprivation of wages as a form of robbery, defined as action that forcibly deprives another of money that is rightfully his:

 

Deprivation of wages is also robbery. Then why did the Torah address them separately? So that one would thus violate two prohibitions.

 

However, the Torah’s placement of the prohibition against depriving a worker of his wages in the same verse as that of robbery seems to indicate that they are in fact distinct prohibitions. As Ibn Ezra notes, one key way in which deprivation of wages differs from typical acts of robbery is that the former is performed privately, while the latter is done publicly, as by snatching something from another person. The fact is that others are not always aware that a worker has not been given his due: often it is simply the employee’s word against the employer’s.

 

Ba’al Ha-turim, observing that our verse is followed by the prohibition of cursing another person, explains that the second verse continues where the first left off. Rather than cursing an employer who has wronged him, an employee should take him to court, where he can be assured of the same due process as for any other type of theft.

 

Yet beyond the strict legal plane, this type of robbery is viewed with much greater severity than most. The Gemara excerpted above goes on to state that one who withholds an employee’s wages is in violation of no fewer than one positive and five negative commandments. These includes the three prohibitions mentioned in Kedoshim (withholding wages, robbery, leaving wages overnight), the additional prohibitions found in Devarim, and the positive commandment appearing there (to pay a worker on the day his wage is due).[1]

 

Still, for all that these prohibitions are all violated simultaneously, there are differences between them. Depriving an employee of wages, for instance, entails not paying at all, while the prohibition of leaving wages overnight refers to paying tardily. The words “that is in your land” are added in Devarim, for their part, are understood by the Gemara (Bava Metzi’a 11b) as extending to work that is done not by a person, but by an animal or machine. Even in those cases, wages must be paid in a timely fashion.

 

Nevertheless, despite these distinctions, the question remains: What need is there for two parashiyot? Would it not be sufficient to include all of the prohibitions in a single mitzva?

 

Differentiating Between the Passages

 

One answer is that the two passages refer to two different types of workers: Vayikra discusses a day laborer, while Devarim refers to a night laborer. Thus they do not in fact repeat the same prohibitions.

 

Similarly, the subjects of the two passages are not the same. Parashat Kedoshim discusses withholding “that which is due your fellow,” whereas Devarim specifically forbids withholding wages from a needy person. Thus Rashi (Devarim 24:14) comments that one who withholds the wages of a poor worker violates two prohibitions, while non-payment of a worker who is not poor is a violation only of the prohibition in Parashat Kedoshim.[2]

 

Indeed, the two passages refer to distinct situations. Yet these answers beg the question: why does the Torah go out of its way to repeat essentially identical mitzvot?

 

In his commentary to Devarim (24:14–15), Rav Hirsch observes that the context in Kedoshim is the Torah’s instructions for achieving holiness, while the mitzvot are later repeated in the context of the settlement of the Land of Israel:

 

Scripture reiterates this duty here, in the compendium of laws for the settlement of the Land, and this reiteration is accompanied by warnings and exhortations to refrain from thus sinning particularly against the needy. Indeed, the practical importance of this mitzva begins only with the settlement of the Land, and experience has shown that tardiness on the part of the wealthy in meeting their financial obligations toward the workers and craftsmen in their employ has undermined their standing and deprived them of prosperity and growth.

 

The mitzvot are repeated, then, because they are an important component of both discussions.

 

A Second Look

 

Before we venture onward, let us take a step back and look at the finances of employer and employee. In considering these mitzvot on a general level, we may be inclined to assume that the employer is relatively wealthy, whereas the employee is relatively needy. However, this need not be true. For instance, it is not uncommon for an employer to treat his workers better than he treats himself by paying them their salaries promptly while he himself cannot collect a profit until all expenses are paid. If a client fails to pay, the employer is likely to find himself in a more difficult position than his employees. When the business is having a difficult time, matters can be all the more difficult.

 

This background is by no means intended as license for non-payment of employees. However, it is important for us (as well as employees) to recognize that the employer is not always better off and sometimes, by virtue of being the employer, must treat employees better than himself.

 

Rav Menachem Bentzion Zaks, in his Menachem Tziyon, looks to Megillat Rut (2:4) for a model business relationship. It is recorded that when Boaz arrived at his fields, he warmly greeted his employees, “God be with you,” to which they responded, “God bless you.” This exchange may at first seem irrelevant to the storyline of Rut, but it serves to illustrate the warm relationship that Boaz’s workers enjoyed with him, which is expressive of Boaz’s character and a model for similar relationships.

 

Unfortunately, as Chafetz Chaim acknowledges, such behavior is not always the norm. Employers often take their employees for granted and mistreat them. Where finances are concerned, the owner of a failing business sometimes retains an inflated salary that prevents him from paying workers properly – a practice that is particularly disturbing from the vantage point of the mitzvot we are studying. Though an employee should be cognizant of the difficulties that face his employer, the prime financial responsibility is that of the employer toward his workers.

 

The halakhic particulars of this responsibility are somewhat complicated, so we will only touch on some of the basics. Even if one has delayed payment, thus violating the biblical mitzva, one is rabbinically obligated to pay as soon as possible (Shulchan Arukh CM 339:8). It also bears note that according to some authorities, the biblical obligation to pay applies only when a worker asks the employer to pay him and the employer has the funds to do so (ibid. 10), although others argue that the employer is required to pay immediately even in the absence of a request (Sha’ar Ha-mishpat 339:102).

 

Pitchei Choshen (Sekhirut 9:36) rules that an employer is required to withdraw money from a bank account in order to pay his workers, and Chafetz Chaim writes that one must make do with modest Shabbat meals rather than fail to pay workers. Chafetz Chaim further states that when a worker tells his employer that he has completed his work, it is as though he has explicitly requested payment. Finally, Chafetz Chaim notes that while payment times do depend upon standard business practices, because the exact parameters often are unclear, one should always have an explicit agreement or contract drawn up before beginning work. Sefer Ha-chinukh summarizes the circumstances in which the employer is required to pay and those in which he is not, and adds that no one should hire an employee if he is not convinced that he will be capable of paying him.[3]

 

The Need for the Prohibition

 

Against the preceding background discussion, we can appreciate Alsheikh’s (Vayikra 19:13) comment that the Torah forbids tardy payment of wages so that an employer will not rationalize that he will eventually pay, but after a delay. To avoid this slippery slope, the Torah slaps prohibitions on even a mild delay in payment.

 

Or Ha-chaim, meanwhile, writes that this mitzva is meant to prevent people from finding justification for other forms of robbery:

 

The Torah having forbidden acquisition of another person’s money through theft, a person might conclude that the Torah’s objection is only to thievery, and not to other methods of appropriating that which rightfully belongs to another. Therefore the Torah had to outlaw obtainment of money by one who exploits his position of strength vis-à-vis a person whose social or financial position places him at a disadvantage.

 

Defining Terms: Oshek and Rei’a

 

For Rav Hirsch, the prohibition in Kedoshim against delaying payment must be viewed in the preceding verses: a series of mitzvot proclaiming the principles of justice and truth. The verse that bans withholding of wages, then, is the first of two verses that spell out the conclusions that one is to reach from the broad principles previously stated. He further explains that the word used for “withholding” – oshek – literally denotes holding onto something while withholding it from another person who is thus deprived. Unlawfully depriving any person of that which is due him is a form of oshek.

 

The more surprising keyword in our mitzva, though, is rei’akha, “your fellow.” This word is used again a few verses later in the commandment to love one’s friend as oneself, which Rabbi Akiva famously termed “the great principle of the Torah.” Why, though, is this word used in our verse, which seems a less natural place for it?

 

Comments Or Ha-chaim:

 

The reason the Torah describes the injured party as rei’a, meaning a colleague or friend, is so as to warn us not to utilize the other party’s friendship toward us to shortchange him with regard to what is due him. One must not deal irresponsibly with a friend’s money because he is a friend and presumably will not voice an objection, for the sake of preserving the friendship.

 

Rav Zalman Sorotzkin (Oznayim La-Torah) comments that though on a basic level oshek refers to withholding wages, the Torah refers to the victim as “your fellow,” rather than “your worker,” in order to emphasize the equality, respect, and congeniality that should characterize the employer–employee relationship. If an employer sees his workers as esteemed partners in his business endeavor, he will not mistreat them. Based on this understanding, the mitzva may be viewed as requiring not only prompt payment of wages, but also respectful interaction with employees.

 

Generalizing further, Or Ha-chaim remarks that the mitzva also alludes to the requirement that a person utilize what God has given him in order to accomplish his duties in a timely fashion. Failing to perform a mitzva that one is obligated to perform has an element of robbery in it, and also violates the prohibition of lo talin, not leaving one’s obligations overnight – or pushing them off.

 

 

We should note that Rav Hirsch’s definition of oshek as applying to any act that deprives a person of that which is his due in fact echoes Rambam (Sefer Ha-mitzvot, negative commandment 247). He argues that the Rabbis’ understanding of this mitzva, as found in Torat Kohanim,[4] is not limited to withholding wages, but prohibits retaining another person’s money or possession against his will in a broad range of cases where it originally was obtained lawfully.[5] Withholding wages is simply the classic example: the employer does not steal from the employee, but refuses to give him the money he has earned. Other scenarios include fraud and dishonest financial schemes, in which one receives money with the victim’s consent but then refuses to return it.

 

Rambam’s view is shared by Sefer Ha-chinukh (228), who further explains why the Torah contains distinct prohibitions for withholding, theft, and robbery – all of which are synonyms referring to illegal possession of another person’s property.

 

First, for our own good, God wished to distance us greatly from using another person’s money illegitimately in any way, and He therefore issued many prohibitions.

 

Second, there is an additional benefit to having numerous injunctions, as the Sages of blessed memory said, “The Omnipresent wished to make [the people of] Israel meritorious; therefore He gave them many … mitzvot.” Issuing many injunctions as mitzvot allows us to receive increased reward for abstaining from sin … Similarly, the phrase “so that one would thus violate more than one prohibition” means not that God wants to cause violators to be punished more severely – as God seeks to make [people] meritorious – but rather that He alerts them time after time so that they will learn to accept moral chastisement and will merit great reward by moving far away from transgression.

 

The Employee’s Soul

 

The salience of the employee’s feelings in the prohibition of oshek is explicit in the Torah, which explains that wages must be paid punctually “for he is poor and he sets his soul on it.” The Torah declares that if the abused employee cries out to God, sin will cling to the guilty employer.

 

The term “he sets his soul on it” (eilav hu nosei et nafsho), despite and due to the difficulty of deciphering it on the literal level, makes inexpressibly clear how the laborer relates to his wages, and, by extension, the severity of the crime of withholding his payment.

 

Rashi explains the words as meaning that the laborer is willing to endanger his life for his livelihood.

 

Rashbam takes the phrase to describe the worker’s craving for the proceeds of his labors.

 

Ramban (Devarim 24:15) points out that one who works as a day laborer needs to receive money promptly

 

to purchase with his wages what he, his wife, and his children need to eat at night, for he is poor, as are most of those who hire themselves out for the day. He has staked his life upon this wage, to buy with it food to sustain his life … If you do not pay him when he leaves his work, he will go home and his wage will be left with you until morning, and he may die of hunger at night.

 

Sefer Ha-chinukh explains:

 

The reason at the root of the precept is that the eternal Lord, blessed is He, delights in the sustenance of the human beings He created. It is known that with the delay of food, the body begins to perish. He therefore commanded us to give the pay of the hired worker, because he sets his heart on it to be sustained by it. It is apparently for this reason that He set the time limit for this at one day and no more, as it is the manner of people to fast for one day at times (and this period of fasting can be tolerated). The Torah explicitly conveys the reason for this matter by saying “and he sets his soul on it.”

 

Panim Yafot (Vayikra 19:13) goes one step further, framing his argument in terms of two key dimensions of work: hope of receiving a salary, and effort extended during work. He states that God expedites the punishment of an employer who withholds a salary not due to the monetary loss per se, but due to the physical pain and effort that, in the absence of payment, were for naught. One may be willing to forgive another person for taking his money, but it is harder to forgive an employer who adds emotional insult to fruitless physical injury. “He sets his soul on it” thus is understood as denoting the physical suffering of the deprived worker.

 

The Gemara (Bava Metzi’a 112b) takes an even harder line, stating that due to the worker’s willingness to toil and risk his life for his wages, withholding his wages is akin to taking away his life. The Midrash similarly relates that when an employer delays payment, it is as if he takes away his employee’s soul (Yalkut Shimoni on Vayikra 19:13, cited in Shulchan Arukh CM 339:2).

 

Or Ha-chaim (Devarim 24:8) continues developing this analogy:

 

Although one who withholds the wages of a hired laborer is only committing robbery, his penalty is not monetary but capital. This is the meaning of the Torah’s saying “[so that sin will cling] to you” … The Torah first gave a reason for this penalty by writing, “and he sets his soul on it,” so that the penalty is one life for another.

 

 

 

A conscientious worker puts his soul into his work. Lack of appreciation, monetary or other, demeans a worker and makes him feel that his contribution is not appreciated. An employer is well advised to keep in mind yet another midrashic perspective on our verse, which understands “his soul” to be that of the employer, whose soul and humanity depend upon how he pays and treats his workers (see previous lesson).

 

Interestingly, the unusual terminology of the verse may also have halakhic ramifications. In a well-known responsum (Tanina YD 10) in which Noda Bi-Yehuda prohibits hunting animals for pleasure, he cites this verse as permitting one to put his life on the line for the sake of his work (as Rashi observes obliquely). However, though hunting may be permissible in the interest of making a living, “if a person’s main intention is not to sustain himself, but he goes to a place where wild animals gather, and places himself in danger, out of passion – such a person transgresses the commandment, “You shall carefully guard your lives.”

 

This understanding of “his soul” should remind us of the value of a dedicated employee’s work. The Torah expects the employer to recognize that his worker’s soul is closely linked with receipt of appropriate payment and respectful treatment. If an employee is not treated correctly, comments the Midrash, his employer’s severe punishment reflects not only the pain he has caused, but his disingenuousness. Given the vast halakhic obligations of an employer, one who hires another person must know that he is taking on a tremendous responsibility, and that his actions will determine how the employee feels about himself.

 

This is one reason the discussion in Parashat Kedoshim is not restricted to a poor worker. Any worker, rich or poor, should be treated as the employer’s “fellow” – friend and equal – because any worker has a degree of dependence on his employer for his psychological wellbeing. Thus treating employees personably and amicably is more than just appropriate compensation for borrowing the employee’s soul for the workday: it reflects the good health of the employer’s soul, too.


[1] The terminology in Kedoshim – “the wages earned by a day laborer” (pe’ulat sakhir) serves to include a contract worker as well as the day and night laborers we have mentioned.

[2] Ramban (ibid.), however, indicates that the two passages’ prohibitions are identical, and a worker’s poverty is noted because a worker who is not paid is more likely to be poor and feel that he has limited options at his disposal to obtain what is rightfully his.

[3] Even if an employer is unable to pay his workers (and therefore technically not required to do so at the moment), he should consider obtaining a loan for this purpose.

[4] The main collection of halakhic midrash on Vayikra.

[5] Rashi cites the same excerpt from Torat Kohanim, but does not arrive at the conclusion that the mitzva applies beyond the workplace.