Jewish Law in Our Times

by Simon M. Jackson, Adv., Legal Advisor to Torah MiTzion

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2 - Injurious Employment in Israel – Ideals and Reality Compared

In the news… Cashiers forced to stand on their feet all day long without resting even for a short period of time. Only in the third-world you’re thinking…

The year 2004: Long-time Israeli social activist was standing in line at the branch of the SuperPharm drugstore chain in Jerusalem’s Talpiot commercial area, when he noticed the woman behind the cash register seemed tired. “I asked her why, and she said she’d been standing all day,” says Adv. Yuval Elbashan. “You should sit down,” I said. “And she told me she couldn’t, that it was against company policy,” that she had to be at eye-level with the customers.

Elbashan, a secular Israeli attorney, who is also founder and director of the HebrewUniversity’s LegalEducationCenterfor Human Rights, stopped shopping at the store: “I didn’t want to give my business to a chain that treated its employees that way,” says Elbashan.

“SuperPharm, with its leading market position and its huge profits, is an especially gratifying example of an employer that scorns the dignity of its workers. The management claims it wants to serve customers at eye-level. It apparently is not bothered that at foot-level the cashiers are suffering pain” (Haaretz article 11.11.04, “The Right to Sit Down”). Ironically, the chain’s policy on standing is taken from the American market. The policy on not sitting for eight hours is not a form of employment prohibited by Israeli law, but even so not everything that is wrong is necessarily illegal. We will return in our next column to the outcome of this case.

One of the clearest illustrations of the phenomenon of “injurious employment” at work in modern-day society is the practice of locking workers into their jobs for a period of 12-14 months at banks or the cellular phone companies. Workers are forced to sign contracts according to which if they leave before the end of this period or cause their dismissal they will be charged a fine of between NIS1,500 - NIS3,500. Arguably this is illegal, restricting as it does the employees’ freedom of occupation. Similar complaints from gas station employees made to Israel’s “Kav LaOved” are that their employers deduct money from their already low salaries if they fail to discover that money received from customers is forged.

Avodat Parech

The Torah cautions us on many occasions to be attentive to the plight of others in the society in which we live. We are commanded “not to rule him [the slave] ruthlessly [befarech]” (Vayikra 25:43). The Torah does not explain the definition of avodat parech. Onkelus translates it simply as “difficult work.” However, some of the commentaries noted the uniqueness of this phrase. Rav Saadia Gaon saw in it “affliction and degradation,” while the Rashbam linked it to the root p”r”ch which implies “breaking something down into tiny pieces” and the Ramban pointed out its relentlessness and accompanying slight to the person’s dignity In other words, avodat parech is backbreaking work which crushes a person’s body - and spirit.

The term befarech occurs on only two other occasions in the Torah: “The Egyptians enslaved the children of Israelruthlessly… in every kind of work with which they worked them ruthlessly” (Shemot 1:13-14). Because we too were the victims of Egyptian bondage, we have first-hand experience of slavery and humiliation - and are therefore enjoined to treat our fellow human beings with kindness, compassion and care: “You shall remember that you [too] were a slave in the landof Egypt” (Devarim 15:15).

The Biblical law surrendered them to slavery - but not to disgrace

As with many other areas of Halacha, here too the guiding principle for employees - all employee: whether old or young, man or woman, permanent or temporary worker, citizen of the State or foreign citizen - is derived from the fact that every human being is created in the image of God, Whom everyone is obligated to honor. Similarly, as with many other areas, the employer is commanded to fulfill his ethical obligations, to act towards others beyond the letter of the law and not to make do with simply protecting the formal legal rights to which his workers are entitled.

The words of the Rambam are truly illuminating in this regard. While technically speaking, a Canaanite slave is the property of his master, the Rambam chose to close his Laws of Slavery as well as his entire “Sefer Kinyan” - Laws of Acquisitions (which deals with all the Halachot of sale, gifts, neighbors, partners and agents, and slaves) with a totally different approach:

“It is permissible to work a heathen slave relentlessly. However, even though it is lawful, the quality of benevolence and the paths of wisdom demand that a human being be merciful and striving for justice. One should not press his heavy yoke on his slave and torment him, but he should give him food to eat and drink of everything.

The sages of old were in the habit of sharing with their slaves every dish they ate, and they fed the cattle as well as the slaves before they fed themselves…”

However, the Rambam was not satisfied with such a general statement, but insists on giving his words practical expression:

“Nor should a master disgrace his slave by hand nor should he verbally abuse him, for the Biblical law surrendered them to slavery but not to disgrace [Niddah 47a]. He should not scream at them angrily, but should listen to his complaints. Iyov expressly relates this point: If I ever spurned justice for my servants and maidservants when they contended with me…Did not He who made in the belly make him too? And did not One [God/Creator] fashion us in the womb? [31:13-15].

Cruelty, is frequently found among the heathens who worship idols, but for the progeny of Abraham, the people upon whom God bestowed the goodness of the Torah, commanding them to observe laws of virtue, we are enjoined to be merciful towards all creatures. So too, when speaking about Divine attributes, He commanded us to imitate [God] through the mitzvot. As the Psalmist said, His mercy is upon all His works [Psalms 145:9] Whoever is merciful will receive mercy, for it is written He will be merciful and compassionate to you and multiply you [Devarim 13:18]” [Hilchot Avadim 9:8]

“The Torah gave them over to slavery, but not to shame.” Although slaves must do their master’s bidding, the master has no right to humiliate them by treating them disrespectfully. This is a great and fundamental principle that the Torah brought to the world: both master and slave derive from one common Source - “a most remarkable advance on the ethics of antiquity” (A.S. Peake, Christian Hebraist, Commentary on Job). Indeed, Rav Yosef Karo in his Kesef Mishnah commentary on these words of the Rambam goes far as to actually state (uncharacteristically for the great Halachist) how “the words of our teacher (Rabbeinu) are so fitting for him,” in light of the Rambam’s ethical approach to life. And if this was true in ancient Israel when slavery was the prevalent norm, how much the more should it apply to employees in our own times, who live in a Jewish and democratic State, founded as it is on the value of human dignity and freedom.

Next Column: Injurious Employment in the Fifteenth Century - and Today

 

To ask Simon a question regarding this article, or for assistance with any Israeli legal, notary or professional translation services, click here: www.jacksonadvocates.net

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Jewish Law in our Times > Workers' Rights

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