Q: What are the mitzvos and prohibitions related to payment of wages?

A: Payment of wages is no less a mitzvah than payment of any other monetary obligation. Therefore, withholding due wages from a worker or employee is tantamount to stealing from him (C.M. 339:1-2, SM”A 339:4).

In addition, there are specific prohibitions that relate to withholding wages: “Lo sa’ashok es rei’acha - You shall not cheat [i.e. withhold wages from] your fellow (Vayikra 19:13).” If the employee is poor there is an additional prohibition, “Lo sa’ashok sachir ani v’evyon - You shall not cheat a hired person who is poor or destitute (Devarim 24:14).”

Furthermore, the prohibition does not relate only to withholding wages entirely. There is a mitzvah to pay wages in a timely manner and prohibitions against delaying payment: “B’yomo siten scharo, v’lo savo alav hashemesh - On that day you shall pay his hire; the sun shall not set upon it (Devarim 24:15)”; “Lo salin pe’ulas sachir itecha ad boker - A worker’s wage should not remain with you overnight (Vayikra 19:13).”

These many verses underscore the importance that the Torah attributes to proper payment of wages.

Q: I asked an appliance repairman on my block to check my faulty refrigerator. He immediately ascertained that the outlet was defective and simply plugged the fridge into another outlet. He left a bill for $50, explaining that his standard rate for an initial visit is $50. Must I pay the full amount of this bill, since he really did nothing?

A: You are required to pay this bill fully. By withholding payment of this bill you would be stealing from him, neglecting the mitzvah of paying wages, and violating the additional prohibitions mentioned last week (SM”A 339:4).

Although the repairman did not explicitly mention that he was going to charge you, if you asked him to come in a professional capacity he is entitled to charge payment. Only if there was a clear understanding or indication that he was coming as a neighborly favor is he unable to charge you (see Rama C.M. 246:17, 264:4).

It is always advisable to agree ahead of time with a worker what the charge will be, to avoid misunderstandings later (Ahavas Chesed, end of Part I).

Q: If someone did a job and the fee was not set beforehand, how much is owed?

A: We mentioned last week that it advisable to agree on wages before starting a job. If nothing was stipulated, but it is customary for the worker or employer to have a set fee scale, that amount is binding on the other party.

If the worker and employer do not have a set scale, the job has to be evaluated according to the going rate of such a job. This includes not only the actual wages, but also any benefits that are typically given for this job (C. M. 331:2). We must also take into consideration the quality of the job done and the professional training and qualifications of the employee (Pischei Choshen, Sechirus, ch. 8 ftnt. 11).

In the likely situation that the going rate has a range, the employee is entitled only to the lower end of the range, even if most workers charge more. This is based on the basic principle of monetary law that the party in possession of the money has the upper hand, even against the majority (Ketzos Hachoshen 331:3).

Q: I hired someone to paint four rooms. He gave me a bill for $1,200, but I remember the agreed-upon price as being $1,000. What do we do?

A: To avoid disagreements of this sort, it is advisable to get a written quote. In this case, however, there is no evidence to resolve the dispute. Since the painter claims $1,200 and the homeowner admits that he owes $1,000, the homeowner is modeh b’miktzat (he admits partially to the claim). The homeowner must pay $1,000 and take a severe oath in court that he does not owe the remaining $200 (SM”A 89:17). However, most batei din refrain from imposing oaths nowadays and encourage reaching a compromise instead. If the homeowner does not recall if he agreed to $1,000 or $1,200, he must pay $1,200. This is because he is unable to take the severe oath in which he is obligated (C.M. 75:13). However, if the homeowner already paid $1,000 or is prepared to pay immediately, the nature of the oath is subject to a dispute beyond the scope of this column (see C.M. 89:4 and Shach 89:10).

Furthermore, in this case, if the homeowner does not remember, he cannot be made to pay the extra $200 - but it is meritorious for him to do so (C.M. 75:9 and Shach 88:36).

Q: I served as a waiter at an affair. Before going home, I asked the caterer for my wages. He insisted that he had paid all the waiters, including me, an hour ago. Who is believed?

A: The general rule is that when the defendant denies the claim, the burden of the proof is on the plaintiff (hamotzi meichavero alav ha’reayah). However, Chazal instituted that on payment day, a worker is believed if he takes a severe oath that he was not paid. The reason is that the employer may be preoccupied with other employees or business interests and is liable to get confused, whereas the employee is focused on his own payment (C.M. 89:2).

However, if the dispute should arise later on, past the payday, we revert to the general rule, and the employer is believed with a simple oath (shevuas heses) (89:3). We mentioned in a previous issue that Beis Din usually refrains nowadays from administering oaths, and advocates a compromise.

This entire situation could be avoided if the caterer would pay by check or have each waiter sign a document when paid.

Q: When is considered “payment day” in halacha?

A: The proper time for payment depends on the terms of employment and the nature of the job. If a stipulated time was agreed upon, payment is due then. For regular employees, this typically means a weekly, bi-weekly, or monthly “pay day.” For contracted work, if the invoice allows 7, 14 or 30 days for payment of services, wages are due by then (C. M. 339:9-10). If the employment terms do not stipulate a time, but there is a clear local practice for that type of work, e.g., the first or last day of the month, payment is due then (C.M. 331:1-2). If the employment terms do not stipulate a time and there is no local custom, payment is due on the day or night that the services were completed (C.M. 339:3-4). Therefore, for a per-diem worker or plumber who did repairs during the day, payment is due that day; for a musician who performed at an evening bar mitzvah, payment is due that night.

If an employer doesn’t expect to pay immediately, he should clarify this beforehand with the worker.

Q: Due to an erratic schedule, I don’t remember the exact hours my babysitter worked and whether I paid her last week. What do I owe her now?

A: If the babysitter claims that she was not paid, you are obligated to pay her. Although the burden of the proof is generally on the plaintiff, in this case you definitely owed her the wages. Therefore, the status quo of this obligation bolsters her definite claim, despite your doubt (C. M. 75:9).

Regarding the hours, you must pay for the hours you remember. If the sitter claims additional hours and you question her reckoning, you are not obligated to pay for those additional hours if you are prepared to pay immediately for the hours you acknowledge (89:3). Nonetheless, it is meritorious to pay the amount she claims (75:9; Shach 88:36).

If the babysitter also does not remember whether she was paid, you are exempt. If she does not remember the hours, you only need to pay for the hours you are sure of. Some say that it is proper for you to reach a compromise with the babysitter (see 75:18; Shach 75:58; Taz 75:10; Pischei Teshuva 75:18).

Q: Who is included in the halachic requirement for timely payment of wages?

A: As mentioned in the beginning of this series, there is a mitzvah to pay wages in a timely manner and two prohibitions against delaying payment. The requirement to pay promptly and the prohibitions to delay apply to both regular employees and someone hired on a one-time basis. It does not make a difference whether the worker is paid by the hour or paid a flat fee for the job (C. M. 339:6). Furthermore, the requirement applies even to services rendered by a minor (e.g., babysitting, lawn mowing), and even if the wages amount to a small sum. It also applies regardless of whether the worker is poor or wealthy (Ahavas Chesed 9:3,5,8).

This requirement to pay promptly applies not only to wages, but also to rental fees. There is an opinion that the prohibition does not apply to property rental, but many authorities maintain that it applies also to real estate (C.M. 339:1; Ahavas Chesed 9:5). Therefore, a renter has to be especially careful to pay his rent bill promptly. The same is true for someone who leases an auto or other equipment.

Q: There is no cash available this month to cover payroll. May I delay payment of salaries?

A: There is a mitzvah to pay wages promptly. However, an employer does not violate the prohibition of delaying wages if he does not have funds to pay the employee (Choshen Mishpat 339:10).

If the employer does not have sufficient funds to cover the payroll entirely, he must still pay whatever amount he is able to. Furthermore, if the employer has accessible funds in the bank or entrusted with someone, he is required to procure them, even if it involves time and effort (Ahavas Chesed 9:7,10; Rama C.M. 104:4).

If the employer does not have funds, but has assets that can be sold, there is a dispute whether he is required to sell them in order to raise cash for payment of wages (see R. Akiva Eiger C.M. 339:10). If he can borrow money in order to pay promptly, it is proper that he do so (Pischei Teshuva 339:8; Ahavas Chesed 9:7).

In any case, a person should not hire a worker if he does not expect to be able to pay him promptly, unless the worker was told ahead of time and he agreed to receive payment later (Ahavas Chesed 10:12).

Q: My organization does not have sufficient funds to cover the entire payroll, other bills, and necessary purchases and orders. Is there a priority of payment?

A: A person is expected to pay all his monetary debts in a timely manner when he is able to. If he is unable to, covering the payroll takes a certain priority over other debts, since delaying payment of wages entails additional prohibitions. If utilizing all the available funds for payroll will cause penalties or further loss on other obligations, a Rav should be consulted, since the additional prohibitions may not apply in many organizational or corporate situations.If an employer has funds to cover the payroll only partially, there is a priority to pay a needy employee over a wealthy one, even if the wealthy employee approached the employer first for his salary. If both employees are of the same status, the employer should divide available funds fairly between the two. There is a dispute whether this means equally or by percent, proportional to the various salaries; the common local practice is also relevant. There is no priority given to an employee who is a relative, even though such a priority exists regarding distribution of charity (Ahavas Chesed 10:8-10; see C.M. 104:10 and Aruch Hashulchan 104:15).

Q: We returned home at 11:00 pm and owe the babysitter $30. If we don’t have enough cash, may we pay her later in the week?

A: Since the job finished during the night, payment is due then. Thus, there is a mitzvah to pay the babysitter that night and a prohibition to withhold payment to the next day against her will (C. M. 339:4). However, one only violates the prohibition if the employee asks for her wages. Therefore, if the babysitter is fully willing to receive payment afterwards, there is no violation. (Nonetheless, if you do pay that night you fulfill a mitzvah.) You should be careful, though, not to delay payment unnecessarily the following days, but to pay as soon as possible (C.M. 339:8-10).

If she wants payment that night, but is embarrassed or unable to ask, the Chofetz Chaim maintains that you may not delay payment (Ahavas Chesed, ch. 9 nt. 29,32).

Although a person does not violate if he does not have money available, if the babysitter wants payment that night and you are able to get money from an ATM, you are required to do so, even if inconvenient. If you have a $50 bill, you are required to give it to her and let her give you change when she can. Alternatively, you can write her a check, and, if she wants, let her return it when you have cash.

Q: When I asked my dentist about payment, he said, “We’ll bill you.” May I delay payment until I receive the bill? When I receive the bill, must I pay it immediately?

A: Shulchan Aruch rules that one only violates the prohibition of withholding wages if the worker asks for immediate payment. If a worker agrees to delay payment, one no longer violates the prohibition (C.M. 339:8-10). The Zohar, however, writes that it is improper to withhold wages even with the worker’s permission. Some also infer from the language of the Gemara and Shulchan Aruch that although one doesn’t violate if the worker doesn’t ask for pay, it is still proper to pay immediately (Pischei Teshuva 339:7; but see Erech Shai 339:10). When the bill arrives, although “bal talin” no longer applies, there is a rabbinic obligation to pay any due debt as soon as possible, based on the verse, “al tomar l’reiacha” – “Do not tell your neighbor, ‘Leave and come back; I will give tomorrow,’ when it is by you (Mishlei 3:28)”, but this obligation is more flexible, such as if the patient is very busy or low on cash (C.M. 339:7).

Thus, it is preferable to pay immediately, but it is acceptable to wait until the bill arrives. When you receive the bill, you should pay it as soon as feasible.

Q: I brought my car to a mechanic for repairs. He called in the afternoon to say that it was ready. Do I have to pay him that day if I will not pick up the car until morning?

A: When you give an item to a worker for repairs, you may delay payment as long as the item is in his hands. When he returns the item to you, you must pay that day (Choshen Mishpat 339:6). There are a number of explanations for this halacha. Some explain that as long as the car is in the mechanic’s hand, it serves as collateral to ensure payment (SM”A 339:10). Others explain that the job is not considered complete until the item is returned (Aruch Hashulchan 339:8; Ketzos 72:23). A third explanation is that by not returning the car, the mechanic indicates his willingness to wait for payment (Meiri B.M. 112a). If the mechanic explicitly asks you to pick up the car and pay that day, there is a dispute whether you can delay payment if you do not pick it up. The Chafetz Chaim maintains that you do not violate by waiting, whereas Aruch Hashulchan is of the opinion that you do violate. Everyone agrees that there is an obligation not to delay payment without reasonable cause (see Pischei Teshuva 339:2; Ahavas Chesed 10(2) and Biur Halacha O.C. 242 s.v. l’chabed; Aruch Hashulchan 339:8; C.M. 339:8).

Q: The contractor who renovated our house finished working and asked for payment of the final installment. However, we are dissatisfied with one of the cabinets and would like it replaced. Must we pay the bill now or can we withhold payment until he replaces the cabinet?

A: The halachic principle is: “ain sechirus mishtalemes ela l’vasof” – payment for labor is due only at the conclusion of the job (BM 110b; Rama C.M. 78:1). So long as the contractor has not finished his work, even if only a little bit is left, you are not obligated to pay him, unless the terms of the agreement state otherwise (Pischei Choshen, Sechirus, ch. 9 end of ftnt. 29).

Therefore, if the contractor agrees that the cabinet has to be replaced, you are not obligated to pay him the remaining balance yet. However, if he claims that the cabinet is adequate, you run the risk of violating the serious prohibition of “bal talin” by withholding his wages (see Pischei Choshen, Sechirus, ch. 9 ftnt. 1). An external professional must confirm that the cabinet is indeed deficient to justify withholding payment.

Q: We have a number of temps that were hired for us by an outside employment agency. Do the laws of prompt payment apply to them as well?

A: The Gemara (B.M. 110a-b) teaches that if someone hires an employee to work for another person, neither party violates the prohibition of “bal talin” if payment is delayed. The business owner does not violate, because he did not hire the worker, and the one who hired does not violate, because he is not withholding the wages. This is true even if the first person who hired the employee was an agent of the owner. However, there is a rabbinic obligation on the owner to pay as soon as possible, based on the verse, “al tomar l’reiacha” (C. M. 339:7).

If the agent who hired is also responsible for paying the worker, though, he would violate bal talin. Thus, if the temp is hired and paid through a human resources company, they would be in violation, since they are also withholding his pay (ibid). Similarly, if a business has a senior executive officer who has full authority for hiring and paying, he would be in violation (Ahavas Chesed 10:4).