BAL TOLIN – PUNCTUAL WAGES

Paying wages punctually is probably the most common Choshen Mishpat issue that affects most people regularly, yet few are familiar with the halachos. Its scope is not restricted just to employee’s wages, but it encompasses any payment commitment for services or rental. That includes service providers such as barbers, musicians, waiters, taxi drivers and babysitters, and charges of craftsmen such as an electrician, painter, plumber, tailor or appliance repairman. Furthermore, it extends to rentals of metaltelim, moveable items such as chair or car hire. Although some exclude rental of karka, poskim hold that limitation only concerns actual land, but it would apply to rental of buildings constructed on the land. With such a broad spectrum of situations, one will inevitably be faced with issues without realising the significance of this mitzva.

MULTIPLE TRANSGRESSIONS

On might consider delaying payment of an employee by a short period to be considered a minor infraction, yet Bava Metzia 111a teaches that one transgresses five negative commands and one positive one. Why does the Torah treat this laxity with such strictness? This severity is already apparent in the pasuk in Parshas Kedoshim (Vayikra 19:13) which contains three instructions: לֹֽא־תַעֲשֹׁ֥ק אֶת־רֵֽעֲךָ֖ וְלֹ֣א תִגְזֹ֑ל לֹֽא־תָלִ֞ין פְּעֻלַּ֥ת שָׂכִ֛יר אִתְּךָ֖ עַד־בֹּֽקֶר. 1) Do not withhold that what is due to your neighbour, 2) do not rob him, and 3) do not leave the wages earned by a day labourer overnight until morning. Sandwiched between two admonitions regarding payment of wages is the general injunction against robbery, illegally taking another person’s money. This seems out of place in Kedoshim which is devoted to the Torah’s recipe for a life of holiness. Indeed, the gemora points out that the prohibition of stealing has already been established and therefore explains that deprivation of wages is a form of robbery, and the Torah addresses it with a separate expression that one would thus violate two laavim. As the employer has every intention of paying the wages, but in his own time, why is this treated more strictly than regular stealing by imposing multiple transgressions?

HE SETS HIS SOUL ON IT

These laws are repeated in Devarim 24:15- בְּיוֹמוֹ֩ תִתֵּ֨ן שְׂכָר֜וֹ וְֽלֹא־תָב֧וֹא עָלָ֣יו הַשֶּׁ֗מֶשׁ כִּ֤י עָנִי֙ ה֔וּא וְאֵלָ֕יו ה֥וּא נֹשֵׂ֖א אֶת־נַפְשׁ֑וֹ וְלֹֽא־יִקְרָ֤א עָלֶ֙יךָ֙ אֶל־ה’ וְהָיָ֥ה בְךָ֖ חֵֽטְא:. You shall give his wage on his day and not let the sun set on it, for he is poor and he sets his soul on it, lest he cry out to Hashem against you and you incur a sin. The context here is a series of laws for society organisation in anticipation of their entry into the Land of Israel. Rabbi SR Hirsch explains that the duties of paying wages punctually were split between Kedoshim, dealing with sanctifying our lives, and Ki Seitzei where their practical importance arises with the settling down of the people. Each reflects different aspects of the special relationship between employer and employee. The Chafetz Chaim dedicated an entire section in Ahavas Chassed to the mitzva of timely payment of workers, which has become the Mishnah Berurah for these laws. In an introduction to that section, he mentions the severity of these laws as discussed above and then quotes from the Zohar which connects the Kedoshim pasuk forbidding an employer to keep wages “with you all night until morning” with Ki Seitzei’s, “do not let the sun set on it”. He comments that one should be careful to follow these mitzvos so as not to “die ahead of time”. To withhold the wages of a poor man is like taking his life. As the employer is responsible for that, even if lengthy days and many blessings were decreed for the employer, they are all withdrawn, nor does his soul mount aloft. The Zohar views payment of wages as restoring his soul; withholding them is akin to murder. This allows us an insight into the Torah outlook on employment relationships.

RELATIONSHIP WITH EMPLOYEE

The Torah’s outlook on the relationship between employers and employees is much deeper than that found in the secular world, which focuses on worker’s rights. The Torah approach is based on a system of responsibilities. The employer is providing the employee with the opportunity for earning a livelihood, and the employee is dedicating a major slice of his daily life for the employer’s benefit. The employee is obligated to conscientiously perform the work for which he is hired, and the employer must show his gratitude for the work done by paying him on time. Delay in paying his wages indicates a lack of appreciation for the efforts of the employee who puts his soul into his work – “and he sets his soul on it” and suffers an emotional insult. These concepts truly belong to Parshas Kedoshim, as they relate to the sensitivities an employer must have for his staff, and that their relationship should reflect a mutual appreciation of each one’s contribution to their lives. These laws must be balanced with the commercial viewpoint of Ki Seitzei, so the Torah used a system of multiple instructions to reflect the different aspects of the law.

UNUSUAL EXEMPTIONS

In light of this understanding of the issur of bal tolin we can comprehend the basis for some unusual halachic exemptions from the issur. For example, where the hiring of the employee was carried out by an agent, bal tolin does not apply, even though halacha generally regards שליח של אדם כמותו. Since the sensitivities of an employee relationship which give rise to bal tolin strictures are very personal, the Torah is not concerned where that relationship is less direct anyway. In situations where payment is delayed because the employer has no available funds, there is no transgression because the employee understands that the delay is not coming from a lack of appreciation of his work. However, if the employer has a bank overdraft facility but does not wish to utilise it or he has foreign currency and does not want to suffer the exchange charge, there would be transgression because the employee will be slighted by

the employer for not regarding his remuneration as an urgent need whilst the employer has access to funds. There would be a similar violation if monies are drawn by the employer for his own personal needs or business purchases are made without budgeting to ensure sufficient funds for wages payment, as it is indicative that the employer does not have the required respect for his employees and regards them of secondary importance. There is also no violation where the employee does not request payment, because that is taken as an indication that he would not be upset if payment is delayed. However, in practice, this exemption rarely applies. Regular employees have a contractual agreement which stipulates the payday, so that is considered as if there is an automatic demand on that date even if no formal request is made. The fact that the employer is not present when the payment is due so that the employee cannot ask him for money, does not allow us to assume that the employee is not fussed about being paid later. Similarly, if a babysitter does not request settlement when finishing her job, it may be that she is too ashamed to make the demand and there would be a Torah violation if she is not paid that day.

ADVANCE AGREEMENT

Chofetz Chaim wrote this section because he was convinced that people were transgressing out of ignorance and offered important advice. For example, violation may arise where a painter finishes a job and when the householder comes to pay, he deducts a retention for possible snagging, or he tries to knock down the price, forcing the desperate painter to give a discount. As the painter reluctantly agrees because he has little choice and is not paid in full, there would be multiple Torah violations. Chofetz Chaim advises never to commission any services without exact stipulation of terms at the outset, as any predetermined condition about payment will eliminate concerns about bal tolin. Pricing and proposed retentions should be agreed in advance so that there is no haggling at the end. Whenever terms are agreed to at the outset, that avoids any transgression, as the service provider cannot be upset with something he agreed to in advance. There would be no transgression when taking employment at an institution that has chronic cashflow problems and consistently pays late, because he is aware of that situation before he took the job, so there is implied agreement to accept late payment.

CORPORATIONS AND KOLLELIM

It may be difficult to establish who is the effective employer where the company or institution is not controlled by its owners, or in the case of a charity, has no owners. There is discussion in the poskim whether a manager is considered an agent where no bal tolin applies, but if he controls employment, then he has responsibility to ensure timely payment. Chazon Ish (BK-23:8) held that although payments to kollel avreichim may be considered ‘schar batala’, compensation for loss of earnings, bal tolin would still apply, but Rav Elyashev held that was not salary for work done. R’ Moshe Sternbuch (Teshuvos Vehanhogos-3:470) only recognises kollel employers who have full control: raising funds, deciding on staff and avreichim and managing all payments, without external decisions, otherwise it would be considered payment by a manager.