Sunday, June 01, 2008

The Living Wage

I finally read the much-discussed paper by Conservative Rabbi Jill Jacobs on the living wage, which was recently adopted by the (Conservative) Rabbinical Assembly's Committee on Jewish Law and Standards (link, download - PDF). I was fairly impressed with the care with which the author read the sources and did not try to infer more than the texts allow. There is, to my surprise, no attempt to say that halakhah requires us to pay a living wage or hire union workers. Rather, the author tries to show that these actions are mandated by the underlying values of halakhah. She also does not romanticize unions and, in my opinion, adequately deals with their problems and points out that they are still necessary to safeguard very basic workers' rights. In my admittedly unqualified opinion, almost all of the conclusions are self-evident as desideratum, even if not halakhically obligatory.

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The rishonim almost unanimously point out that halakhah attempts to protect workers' rights. R. Gersion Appel writes (A Philosophy of Mitzvot, pp. 123-124):
Though the essential laws governing employer-employee relations are to be found in the Talmud and the later codes, the spirit underlying them is already evident in the Torah, as noted by the Hinnukh. While the employer is entitled to benefit in due measure from the work of his employee and to receive an honest day's work, special consideration under the law is accorded the worker in order to protect him from exploitation and to safeguard his material and human rights. He is to receive his wages at the stipulated time, the employer being biblically enjoined from withholding it, "for he is poor and setteth his heart upon it" (Deuteronomy 24:15). The Halakah gives the worker the advantage when claiming his wages. While, ordinarily, the law provides that one can deny a disputed claim and be freed of the obligation by taking an oath, in this case the employee has the right to take the oath and receive his wages.

Significantly, the law guards his rights due him as a free agent. In exercise of this freedom the Rabbis allow the worker to quit his job on the principle, "For unto Me the children of Israel are servants" (Leviticus 25:55), and not servants of servants. This right is limited, however, in consideration of equity, to prevent injustice and undue loss to the employer. The welfare of the common worker merits the Hinnukh's special consideration. Thus, he advocates that we should follow the practice today of granting severance pay to one who has provided service for a period of time, even though the law was, strictly speaking, limited to the Hebrew servant in the time of the Temple.
One thing that I found surprising in the paper is the claim that Jewish employers are obligated to follow even unenforced American laws based on the concept of "dina de-malkhusa dina - the law of the land is the law" (p. 45 of the paper). My understanding of this concept is that we are only obligated to follow laws that are enforced. There are all sorts of antiquated and ignored laws on the books and there is no reason that Jews should be the only people following them. I don't supposed the author of this paper would advise people living in states with sodomy laws that they must follow them. Similarly, I feel free to, and have personally seen great Torah authorities, cross against a red light when no cars are coming (in NY City, where these laws are not enforced).

Additionally, while I support the concept of a living wage, the paper defines a living wage as "the amount of money a person needs to earn in order to support him/herself on a single forty hour/week job" (p. 28) and then goes on to give more specifics on "support him/herself". I don't know who sanctified the 40 hour workweek but I don't think it has any standing in halakhah. If we are forcing employers to pay a certain wage, why not make employees work a 50 hour workweek? Or a 6 day/60 hour workweek? Yes, it is difficult. But it isn't, in my opinion, unethical to ask employees to work that hard.

Another thing with which I take issue, and I think this goes to heart of this paper's argument, is the claim (p. 24):
The contemporary situation, then, differs from the reality upon which biblical and rabbinic wage laws were based. The rabbis are familiar with workers who live "check to check," but do not consider the possibility that a day's wages might prove insufficient to buy food or other necessities for that day. We therefore find ourselves in a difficult position. As discussed earlier, traditional halakhah remains relevant for many areas of employment law. However, in regard to wages, the rabbinic premise does not correspond with our current reality. This discrepancy suggests that the application of traditional halakhah to present-day labor issues first requires raising wages to a level at which rabbinic assumptions hold true.
This premise that the sages of the Talmud were unfamiliar with the case of a worker whose wages are insufficient for his needs (i.e. does not receive a living wage) is, in my opinion, incorrect. There are multiple terms used in the Bible for the poor. The midrash (Vayikra Rabbah 34:5) lists eight (some versions have 7) terms that refer to the poor. One term is the word "evyon", which the midrash says derives from the root "avah - desire". An evyon is someone so poor that he does not have all of his needs and desires more. Rashi (Bava Metzi'a 111b sv. evyon) explains that an evyon is poorer than an "ani". This idea can also be found in Mekhilta on Ex. 23:6; Sifra on Deut. 15:7; Rashi on those two verses; Arukh, sv. evyon; and Radak, Sefer Ha-Shorashim, sv. ab"h. I am not aware of any traditional explanation that differs from the above. Note also that an evyon is specifically mentioned in Deut. 24:14 as someone whose wages employers must pay on a timely basis.

If this is correct, then the Talmudic sages did, in fact, know of a worker whose wages were insufficient and still they did not obligate the payment of a living wage. Instead, presumably, they relied on the ample charity structure to supplement the insufficient incomes of these destitute people. While this does not mean that we cannot still encourage the payment of living wages or even change the common practice and make it subsequently obligatory, it does, I believe, remove a good deal of force from the paper's main argument.

It is possible that I am misunderstanding the concept of evyon and that it really means someone who is poor, has enough with which to live, but wants a higher standard of living. That is how R. Shlomo Goren understands it (Toras Ha-Medinah, pp. 368-370). But I just don't understand where he sees that in the texts or in halakhah. How can halakhah sanction funding such a person's desire? See the Malbim's commentary to Ex. 23:6 that an evyon "has nothing at all".

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