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The Jewish Ethicist: Free Trial Period

The Jewish Ethicist: Free Trial Period

Do I have to pay someone who did work as part of the interview process?


Q. In order to see if there is a good fit between my workplace and prospective workers, I offer to have them work a few days without pay. If the fit is good, I hire them. One worker who didn't stay on is demanding pay, which I never offered. Do I have to pay him?

A. Paying workers fully and promptly is a high priority in Jewish tradition. A number of Torah verses warn us about this. Here is a verse from the book of Leviticus (19:13, all translations from Living Torah):

    Do not [unjustly] withhold that which is due your neighbor. Do not let a worker's wages remain with you overnight until morning.

Here is a passage from the book of Deuteronomy (24:14-15):

    Do not withhold the wages due to your poor or destitute hired hand, whether he is one of your brethren or a proselyte living in a settlement in your land. You must give him his wage on the day it is due, and not let the sun set with him waiting for it. Since he is a poor man, and his life depends on it, do not let him call out to God, causing you to have a sin.

But of course these passages cannot tell us when in fact the worker is due his wages in the first place. In Jewish law, there are three distinct ways a worker's just recompense can be calculated.

The easiest case is where there is an explicit wage bargain. The employer and worker agree exactly on the demands of the job and the wage. This case is the most widespread case and the least likely to involve disputes or misunderstandings.

A closely related case is where there was no wage bargain but where there is a well-known and widespread custom. In this case, the mishna tells us, "Everything is according to the local custom". (1) The court will rule exactly as if there was an explicit contract stipulating the working conditions and pay that are customary.

In the above cases, payment is due because of the agreement or contract between the sides. In the first case the agreement is comprehensive; in the second case it is rather thin, consisting only of the agreement to hire and the agreement to work.

But there can also be an obligation to pay which doesn't stem from agreement at all. The benefit provided by the worker's actions can itself obligate payment.

    One who enters his neighbor's field and plants without permission: Rav said, an assessment is made and he has the lower hand [between normal planter's wages and the increase in the assessed the value of the field]. Shmuel said, we assess how much a person would normally pay to plant such a field. Rav Pappa said: There is no disagreement. This [ruling – where the wages must in any case be paid] refers to a field which is designated for planting; this [ruling – where the worker has the lower hand] refers to a field which is not designated for planting. (2)

Even when there is no agreement at all, when there is a benefit provided the beneficiary is required to pay some reasonable approximation of the value of the benefit. (In the common law system, this corresponds roughly to the doctrine of "unjust enrichment".)

Even if you never offered to pay your workers, they would have a justified expectation of getting paid the going wage for the kind of work that they are doing. Given that the benefit provided is itself a source of obligation, even a simple disclaimer ("I'm not offering any payment") would probably not be enough. That would be enough to negate any wage agreement, but not to negate any benefit. Obviously any benefit can be waived, but a rather detailed waiver would be called for in this case.

Furthermore, in the light of the underlying law it would seem that the arrangement you describe is not fair. Your criterion for payment is totally subjective – whether you want to keep the person on; it is not directly dependent on whether the person does a good job or not.

This column is not a source of information on secular law, but to the best of my knowledge the secular law would require payment in such a situation.

SOURCES: (1)Babylonian Talmud Bava Metzia 83a (2) Babylonian Talmud Bava Metzia 101a

August 8, 2010

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Visitor Comments: 7

(7) Linda, August 16, 2010 7:19 PM

Even if only for one hour of work

This question stirred some anger inside of me. Even if only for one hour, the employee or 'tested' person should be paid! I worked for many years as a decorator in peoples' homes, estimating and selling custom draperies, upholstery, carpeting, etc.. One time early on in my business, while I was still totally enthuastic, a customer wanted the exact fabric match to the wallpaper on one of their dining room walls. Of course, nobody they'd had over found it in their 'current' sample books. I went into downtown LA, the Furniture Mart, the Design Center, everywhere and finally found it available. Purchased the sample book so I could show it to them. The man immediately grabbed the book from me and wrote down all the information, got other bids for the job and signed contract with someone he found to do it for $9. total less money. He did this without even discussing or negotiating with me, to see if I could do the job for $10 less, or even $20, which I'd have probably been happy to do, after all my expense and time involved in chasing around to find the print they wanted. I thought him to be a total schmuck after that. Sure I learned to hide the kind of information he'd taken from the book after that, but the lesson was too expensive and I found him at fault in his own ethics.

(6) Jill M, August 14, 2010 9:52 PM

Commission only?

How would commission only jobs fit in with this? There are MANY sales positions that provide no base salary (insurance and real estate come immediately to mind). If a real estate broker hires an agent, are they required under Torah to pay a salary on top of commission.

(5) Jason, August 11, 2010 4:25 PM

You disgust me!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

To take advantage of people during a recession, when people need work by not paying them for work is disgusting. I hope this person sues the crap out of you. You are one of the many evil people who treats employees like things instead of people. You should be ashamed of your self! What do you do hire new people every week and not pay them?! I hope some former "employee" of yours see this and comes after you. If you are a Jewish this is a big time Halul Hashem, you should call all your victims and pay them (plus interest !!!!!!!!!!). You have a lot to fast for next month, an awful lot.

(4) observer, August 11, 2010 9:31 AM

Practice described is almost certainly illegal

I'm fairly sure that in most jurisdictions in the US, what this letter writer described is flatly illegal. Even where legal, it is clearly unethical since any normal person expects an offer to come work for a probationary period to be accompanied by a reasonable wage offer, even if it was not explicitly mentioned. Simple failure to offer pay is taken only as an expectation that everyone thinks that the details can be worked out after the probationary period is over.

(3) Rabbi Avraham Nadler, August 11, 2010 6:06 AM

Mr. Obenour's comments added a useful dimension to the question, and interestingly, reflect the fact that secular law in this regard basically parralels the halachic distinction between "schirus" (wage earning time-based employee) and "kablanus" (working by the job i.e. independent contractor). I wanted to add to his coments that it would seem that even if an employer hires the person (or tries out the person) as an "independent contractor", presumably releasing him from a wage obligation if not "product" is produced, if the true nature of the employment situation and work involved is parallel to that of a salaried employee (eg. office work), calling it an "independent contractor" is a mere semantic ruse, and it would seem in my opinion that the employer may still be obliged to pay a commensurate wage for the employee's time. In a similar vein, a US court ruled not long ago that a "lease" of software equipment by a manufacturing company to a client (indended to allow the supplier's maximum control over the usage of the equipment) was legally considered a sale (giving the purchaser full rights over the product purchased, pending compliance with copyright regulations). A functional sale does not become a "leasing arrangement" even where claimed to be such. Similarly, a normally salaried employee does not become an "independent contractor" even if hired as such. So it would seem.

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