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 Shabbat Parashat Masei | 5768Who Has Work Done by a Worker From a Temporary Employment Agency – part IIIP'ninat Mishpat[We have been discussing the law that states that one who engages employees through an employment agency is responsible for their workers’ rights. We last discussed the Rashba, who said that the obligation of one who told a worker to work for his friend is of a cosigner, which might imply that the friend is the direct employer.]
Even if we do not accept that the Rashba holds that the mazmin (the one for whom the work is done) has an obligation as an employer, there are other ways to obligate him to pay the worker. The gemara (Bava Metzia 101a) says that if one goes into his friend’s field and works it without permission, the worker can demand compensation from the field’s owner. This is based on the concept of mah she’hehenehu (paying for the benefit he received). This applies in general to work one did on his friend’s behalf, even without a formal employer-employee relationship.
Where a middleman is involved, if the mazmin has not yet paid him, he has to pay the worker based on the law of shibuda d’Rabbi Natan, which is as follows. The gemara (Pesachim 31a) says: “Rabbi Natan says: How do you know that if one person [Reuven] is owed money by his friend [Shimon], who is owed money by his friend [Levi] that you take the money from this one [Levi] and give it to this one [Reuven]? For the pasuk teaches: ‘And you shall give to the one who he is obligated to him.’” Since the mazmin owes the middleman (agency) and the middleman owes the worker, a direct obligation is established between the mazmin and the worker.
Thus, there are three possible ways to make the mazmin obligated for the worker’s salary: 1) through the obligation of an employer to an employee (Mateh Halevi’s view of the Rashba); 2) because of the benefit he received from the worker; 3) shibuda D’Rabbi Natan.
One of the practical ramifications of the different approaches is the question of workers’ rights. According to the Mateh Levi’s approach that there is an employment relationship that obligates payment of salary, it stands to reason that he is obligated in all workers’ rights. If the obligation is based on benefit received, we have to deliberate about a case where the benefit of the work could have been done by someone who does not demand workers’ rights. This could happen if one used an employment agency that ignores its obligations to ensure its workers’ rights. (We assume that the law that one is not able to relinquish certain rights is halachically binding- see Aharon Feldman’s article, “The Halachic Validity of the Law of Minimum Wages” on the Halacha Psuka site). If the payment is based on shibuda D’Rabbi Natan, then the obligation is limited to the amount of the mazmin’s obligation to the middleman.
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