Shabbat Parashat Pinchas 5771

Ask the Rabbi: Non-Jewish Worker Servicing Clients on Shabbat

Question: I have a business in which my workers and I go to clients’ homes to provide a service. Sometimes a client wants the visit on Shabbat or Yom Tov. May I assign a non-Jewish employee to go? In general, our workers receive a set salary plus a commission per time they meet a client. 

Answer: The halachot of what may be done at a Jew’s business are complicated, both in terms of the root concepts and in terms of applying the rules to similar yet divergent cases. We spelled out many of the principles in Living the Halachic Process, vol. II, C-23. We will focus here on applying the rules to your case and providing two practical suggestions. There may be other ideas, and if you have suggestions you prefer, we can analyze for you if and how they would be permitted.

A non-Jewish worker may do work for a Jew on Shabbat if he is paid per the job (katzatz), as he is viewed as doing it for his own benefit, as opposed to being paid by the time put in (Shulchan Aruch, Orach Chayim 244:1). Since your workers receive a commission for visiting clients’ houses, this condition is fulfilled satisfactorily, even though they also receive a set salary, as long as the following problem is avoided. One must not require the non-Jew to do this work specifically on Shabbat, even in a classic case of katzatz (ibid. 252:2). If he is not required to do the work specifically on Shabbat, he may do so on Shabbat, even if the Jewish employer clearly gains and would like him to do so (see referenced article). It seems that you can conform to this requirement as well, at least if you follow one of the following systems:

System #1: Arrange with a non-Jewish worker that when a job comes in where the request is to have the visit done on Shabbat or a Jewish holiday, he will be given the job and receive all of the profits. It doesn’t matter if, from an accounting perspective, the client writes out a check to your company, as long as the worker receives all of the proceeds (minus real expenses, processing, taxes, etc.). It should be up to the worker to decide whether he will do the job on Shabbat or work it out with the client to do it at a different time from what he originally requested. The set-up, though, should be that the worker does not have to return the client to your discretion if the visit can be done at a time other than Shabbat. If you would make that demand of him, it would be like saying that you are giving him the client for Shabbat specifically, which, we have seen, is forbidden. (It would still be permitted if he has the right, without compunction, to tell the client that he cannot do the job as requested.) In contrast, when he can reschedule it for another time, it is like a case where it is likely but not a foregone conclusion that it will be on Shabbat (see Mishna Berura 307:15). This system divorces the work done from you and can be worthwhile for you if, as a result, you can reduce his salary.

System #2: The worker can share in the profit with your company along the same lines as for any other day. This arrangement raises the issue of s’char Shabbat, receiving pay for (permitted) work one did or use of one’s property on Shabbat. However, you may receive part of the money brought in from the work on Shabbat because if one receives payment in one logical lump sum for Shabbat and weekday it is not considered s’char Shabbat (see Shulchan Aruch, OC 306:4). In this case, a major part of the money coming to the company is for setting up the business, making the connection between the client and the worker who serviced him, etc., much of which takes place during the week. In this case, though, the company is connected to the work done on Shabbat (see distinction in Igrot Moshe, OC II, 64), and therefore there is a problem of marit ayin (it looks as if one is using his worker to violate Shabbat). Then it would be permitted only if: it is not known that it is a Jew’s business, or it is common for such work to be done for a commission and not as a salaried worker.

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