Rabbi Joshua Neely, of Temple Israel, Winter Springs, Florida kindly provided the following insights in the session on “Faith Based Ethics: Perspectives on Faith in the Workplace” at the National Workers’ Compensation Review at the Workers’ Compensation Institute on August 8, 2017. (Rabbi Neely may be reached at firstname.lastname@example.org.)
Judaism believes in the dignity of work, the rights of the worker and the rights of the employer. From the very beginning, quite literally, God sets an example of rest from work; the Sabbath followed the act of creation as a reminder that there must be a cessation in the otherwise oppressive life of toil. But that toil is also sacred – six days a week you will work. We are commanded to work to support ourselves, our families and to shape the world into a better place. Psalm 128 tells us You shall eat the fruit of your hands; you shall be happy and you shall prosper. The last line of wisdom from the book of proverbs extols the ideal woman by promising Give her for the fruit of her hand, And let her be praised in the gates by her deeds. Work is precious to humanity and to the individual.
However, the Torah, the 5 books of Moses, sees that work rarely happens as a personal and private endeavor; one farmer plowing against the lonely earth. Work is business. Work is seldom alone. Economies can grow and shrink in ways that leave some in less advantageous positions than other. The Torah tries to mitigate these effects without destroying the basic drives that lead to work. The Sabbatical year comes each 7 years to give debts a chance to be canceled. This allows those who have had a run of trouble to clear the burden that has grown over them. Those who had had to indenture themselves were set free as well. If this is not enough, every 49 years the Jubilee returned the landholdings of the first tribes back to their original families. Someone who had sold their parcel out of desperation could reclaim it and begin again. Even if one had chosen to remain indentured during the sabbatical year, was now forced to go home and work again for themselves.
Near the bottom rung, just above the indentured servant, were the destitute. These people had nothing. They lived somewhat from the direct gifts of others, what we call tzedakah, gifts of justice. More often, however, they supported themselves because the Torah commanded farmers to leave the corners of their fields unharvested and to leave the sheaves dropped in the field. The poor would come and work for themselves to collect these as their right.
Above these were the landless workers. We sometimes forget in the easy abundance of the contemporary world that for most of human history being without land meant you had no dependable source of food. Food had to be bought with coin, which was secured with labor, or bartered for directly with labor. The landless workers were put in a uniquely vulnerable position: they were not so poor that they could collect the corner and sheaves but they were not self-sufficient enough to resist the unjust demands of those who had the resources.
The Torah, as always, stepped in to regulate their interaction with their employers. God saw fit to limit our use of animals, would God not do even more to limit our use of each other? In addition to the basic command that all people must be given their Sabbath rest, the workers were also given the right to eat from the fields in which they worked. They could not harvest it for themselves, but what they plucked or picked, they could eat.
Moreover, God twice commanded lev 19:13, deut 24:14-15 that their wages be paid on time. An employer had to be prepared to pay his or her workers at the precise moment that had been agreed upon. To be even a few hours late was a crime. Given the need of the worker it is understandable; a few hours is the difference between food and hunger. Bava Metzia 110b
Jewish legal thinking uses these and other foundational passages and commands to establish a robust network of rulings covering more complex cases. The use of precedent and legal reasoning helps fill in the inevitable blanks that appear in any evolving community. For example, the Torah’s emphasis on timely payment of wages is contrasted with the timely payment of other debts. The Talmud asks what a worker should do when the employer refuses to come out and pay. The Torah forbids a creditor from entering the debtor’s home to collect the debt. He must wait outside or seek the court’s help. However, the need of a worker is so great that the Talmud says he may enter the home to collect payment for his honest wages. Deut 24:10 Bava M 115a
And those honest wages? What if the employer claims they have already been paid but the worker says they have not? In the days before bank records or spreadsheets, in the absence of witnesses, an oath was used to settle the matter. If you claimed I owed you $500 shekels for the wool and I claimed I had already paid you, if there was no other way to tell which one of us was telling the truth, the presumption was put to the one who claimed to have paid. He would swear that he had paid under penalty of Heaven and that would settle the matter. In the case of wages, the roles were reversed says the Talmud. A worker would be asked to swear that he had not collected and then the employer would have to pay. Shevuot 7:1
This is not just an important lesson in good bookkeeping and the importance of witnesses. It shows the exegesis of the law towards redressing the inherent imbalance in the relationship between the one who can pay and the one who needs to be paid.
Jewish law has a well established system for figuring out damages caused by or to another person. If I directly damage you I must compensate you for lost earning potential, lost time from work, healing, pain and embarrassment. But how does the court handle more indirect damages? Negligence is the primary determination. If I shoot arrows into the sky around my house, I can’t blame the wind when you get hurt. But what if the connection is more tenuous? If I hire you to move my piano and give you bad advice on how to lift it, am I responsible for your back injury? Jewish law draws the line at direction vs advice; If I tell you how to do the job, I am responsible if you get hurt doing it as I told you. If I merely suggest a method and you chose to follow my suggestion, as long as you had a real choice, I am not responsible.
On the other hand, our Sages ask, what about a case where I do my job the way I should and following my own judgement and get hurt, but the job has inherent risk or expected damage? For example, the Priests who performed the sacrifices were plagued by intestinal problems due to their work with the animals. Jewish law rules that in such cases the Temple treasury paid for their healing.
If you remember our indentured servant from before, we have a similar case. The person had pre-sold his or her labor to someone. If there is an injury or sickness, the person who bought their labor is losing out on their valuable investment. Again the Talmud rules the servant does not have to work extra days, months or years to make up for any time they cannot work due to illness or injury. Day workers, however, due miss out if they miss a day through no fault of the employer. Those hired for a longer period, one in which sickness is bound to occur, must absorb the loss.
These few examples should give you an idea of how well developed, if different, Jewish law is. But our law books do not end at shurat hadin, the line of the law. Judaism believes that the Law is meant to create and support a just society which in turn will support a kind society. Such societies help the human soul to grow and develop more completely. The law, however, is not the end purpose in and of itself. Like an anchor, the law can keep a boat from drifting but also a bird from soaring.
In exceptional cases, we believe that a litigant must go beyond the letter of the law for spiritual reasons and not just jurisprudence: The Gemara relates an incident involving Rabba bar bar Ḥanan: Certain porters broke his barrel of wine after he had hired them to transport the barrels. He took their cloaks as payment for the lost wine. They came and told Rav. Rav said to Rabba bar bar Ḥanan: Give them their cloaks. Rabba bar bar Ḥanan said to him: Is this the Law? Rav said to him: Yes, as it is written: “That you may walk in the way of good men” (Proverbs 2:20). Rabba bar bar Ḥanan gave them their cloaks. The porters said to Rav: We are poor people and we toiled all day and we are hungry and we have nothing.Rav said to Rabba bar bar Ḥanan: Go and give them their wages. Rabba bar bar Ḥanan said to him: Is this the halakha? Rav said to him: Yes, as it is written: “And keep the paths of the righteous” (Proverbs 2:20).
In this case, Rabba bar bar Hanan was endangering his spirit by seeking the strictest application of the law. Yes, the workers had been careless and by law he should be allowed compensation. Yes, by law he does not have to pay them for work done so poorly. But by morality, by the conduct of the soul which seeks a higher standard than the law, he should not only forgive their error but ensure they have enough to feed themselves.
Even in regular cases the Sages routinely teach that we should seek peace between litigants wherever possible. The law is a backup to prevent society from sliding into a darkness of exploitation, corruption and dishonesty. A place where employer and employee each try to steal from the other. Once we know that we have the law as a starting point of fairness, we can be less adversarial in seeking redress.
But why would either side be willing to give up some of their due? Why leave money on the table? Ultimately, as I said at the outset, the law is there to support the community. If we see ourselves as part of an enduring community where our choices matter and where our decision shape the world we and our children will live in then compromise, flexibility, reconciliation, these are investments in the long term health of our society. We have to live here for many years after a court case is finished. A few dollars one way or the other should be of little concern compared to building good will and trust.