Siman 331

The hiring of workers and contractors requires neither a kinyan nor a deed, for whatever a person promises a worker for his labor, even with mere words, he is obligated to pay when the hired person performs his labor [Beit Yosef]. It is not similar to a slave, which requires a kinyan as written in siman 115, for one acquires a slave's body, as even a Hebrew slave's body is acquired [Kiddushin 16a]. However, regarding a hired worker, he only hires him for his labor, and when he has performed the labor, he is obligated to pay him. Indeed, even one who enters the field of his fellow without permission, the fellow is obligated to pay him, as written in siman 375, and all the more so when he hired him as a worker. Furthermore, there is no ona'ah regarding hiring because it is like acquiring him for a time, and a slave is not subject to ona'ah, as written in siman 227. However, in the hiring of an animal, there is ona'ah. The law of the retraction of workers will be explained, with the help of Heaven, in siman 333.

By Torah law, when one hires a day-worker and did not specify with him how many hours in the day he shall do his work, the worker is obligated to go out from his house to his work at the rising of the sun and to work until the emergence of the stars, as it is said: "The sun rises, they gather... man goes out to his work and to his labor until evening," for the time of work is from the rising of the sun until its setting. However, when he goes out to the work, which is for the needs of the employer, the walking is also considered as work, but for the return to his house, he must depart after the sunset. And thus our sages, of blessed memory, said: A worker, in his entry to his house, it is on his own time, and in his exit to his work, it is on the employer's time [beginning of chapter 7 of Bava Metzia]. And on the eve of Shabbat, he hastens himself to his house in order to fill a barrel of water while it is still day, and to roast fish for Shabbat or to cook them, and also to light the candle and to prepare all the needs of Shabbat as is customary. And according to this, by Torah law, the work of a worker is half of a twenty-four hour period, for the verse and the Shas speak of the time when day and night are equal, such as the seasons of Nisan and Tishrei [it appears to me]:

Therefore, one who hires workers without specification may tell them to start early and stay late at their work, and they are not permitted to desist from their work the entire day, except for the time of prayer and eating. The Rambam wrote in the second chapter of the Laws of Prayer: Workers who are performing work for a homeowner pray Havinenu if they are working for their wages, where they receive the wage for their labor in addition to their meal, for then they must hurry to the work. However, if he does not give them wages but rather they work for the wage of the meal, they pray the entire Shemoneh Esrei, but they do not descend before the ark and they do not lift their hands. Thus far his words. And nowadays we are not particular about this, and it is with this understanding that they are hired—that they shall pray in the synagogue the entire order of the prayer, as is written in Orach Chaim siman 110. In any event, we have learned from this how great is the obligation upon the worker to perform his work with integrity, and workers must be very, very careful in this. And let not the heart of the worker fall upon him, for great is work for one who performs it with integrity; and our sages, of blessed memory, said: Work is more beloved than the merit of the fathers, for the merit of the fathers saved property, but work saved lives, as it is said: "Had not the God of my father, the God of Abraham and the Dread of Isaac, been with me, you would now have sent me away empty-handed; God saw my affliction and the labor of my hands, etc." [Midrash Rabbah, end of parashat Vayetzei].

And all this applies in a place where there is no custom, but in a place where they are accustomed not to start early and not to stay late, he cannot compel them to start early or to stay late. And even if he increased their wages relative to other workers, he cannot say, "I increased your pay so that you would start early and stay late," for since he did not stipulate this at the time of hiring, they can say that the increase was for another reason—that the work be done without laziness or the like—for if his intention was that they should do more than the custom, he should have specified.

And even if it were a new city and there is not yet a fixed minhag there, but the majority of the city's people came from a place where there is a fixed minhag, we follow the minhag of the city from which they came. And if the owners are from one place and the laborers are from another place, and there is a difference in minhagim between this place and that place—for example, if he went from a place where they are accustomed to start early and stay late to a place where they are accustomed not to start early and stay late, or vice versa—we follow the place where he hired the laborers. And if the laborers went to hire themselves out in the place of the owners, we follow the place of the owners [as is implied in the Nimukei Yosef there]. And it is not called a minhag unless it is a common matter that is done many times, but a matter that is done only once or twice is not called a minhag. And it is also necessary that the minhag be fixed according to the sages of the place or according to the agreement of the people of the city. And one who comes to change the minhag and claims that he stipulated otherwise, it is upon him to bring proof with witnesses or with a document; but with an oath he is not believed against the minhag. And even when he has a migo, he is not believed in a place of minhag, as I wrote at the end of siman 330. And even seizing property does not avail in a place of minhag if he claims that they deviated from the minhag; but if he claims that they were under duress and could not perform, seizing property avails [Hagahot Ashri there].

When one hired workers and they did not discuss between them whether he shall provide them with food or not, it depends on the custom of the place. In a place where they are accustomed to feed, he shall feed; to provide dried figs or dates and the like, he shall provide everything according to the custom of the province. And if he stipulated to provide them with food, and it is also the custom of the place to provide food, the workers cannot say: "You are obligated to increase our food, for behold, you did not need to stipulate since such is the custom, and this that you stipulated was presumably to increase the food." For he may say to them that such is the way of the world, that even in a matter where the obligation exists from the side of the law or from the side of the custom, nevertheless, they also stipulate explicitly, and the intention was not at all for an increase of food. And if he did not stipulate to provide them with food, and there is also no fixed custom in this, he does not need to provide them with food, for the burden of proof is upon the one who seeks to extract from his fellow. And know that if he increased their wages or decreased them relative to other workers, there is no proof in this to add or subtract against the custom, as I wrote in section 4 in such a case; see there.

When one is obligated to provide them with sustenance, and likewise one who has a manservant or a maidservant in his house, he must provide them with everything that the members of his household eat and drink. For even regarding a Hebrew slave it is written, "for it is good for him with you," and our Sages, of blessed memory, expounded [Kiddushin 20a]: "with you" in food, "with you" in drink—that you should not be eating fine bread while he eats coarse bread. And if they made a condition, everything is according to their condition. And if there is a custom there regarding the manner of sustenance, they shall act according to their custom, for anyone who is hired is hired based on the custom. It is a measure of piety to give the slaves and the servants a taste of every type of food that he eats himself, and particularly something that has a good aroma, such as fatty meat, for one who smells it can be endangered if they do not give him a taste [Ketubot 61a]. See Yoreh Deah siman 267. And for any damage caused by the manservant, the maidservant, or the laborer, they are obligated to pay when it occurred without an accident, for their law is like a shomer sachar. Nevertheless, it is the custom of upright householders not to deduct from them for small damages, such as the breaking of vials and bowls and the like, unless they were explicitly negligent like actual intentional damagers.

One who hires a worker and did not fix a price for him, and also in the city there was no fixed price, he may give him like the lowest rate in the city, for the burden of proof is upon the one who seeks to extract from his fellow. And if he said to him, "I will pay you like one or two of the people of the city," they calculate the highest wage and the lowest wage, and he gives the half of what is between them. For example, if the highest is six and the lowest is four, he gives him five. According to this, if some are hired for three gold pieces, and some for five, and some for six, they do not give him five like the intermediate price, but rather according to the measure of the half between three and six, which is four and a half [Sma]. And similarly, if he said to him, "I will pay you according to the price that they hire in the city," and there are those who hire for less and there are those who hire for more, they average between them according to the calculation that has been explained. And similarly, if he hired them for a future time and said, "According to the price that will be then," and there are those who increase and there are those who decrease, the law is also thus [Ktzot HaChoshen, and the difficulty of the Mishneh LaMelech in chapter 9 of Hilkhot Sekhirut is answered, see there].

A worker or a servant who is provided with garments by the employer and he made him garments, if he leaves in the middle of his work according to the law of a worker who retracts even in the middle of the day, he strips off the garments and leaves. But if he leaves at his appointed time, the garments are his when he did not specify with him at the time of hiring that he must strip off his garments when he leaves [Rosh, chapter 4 of Ketubot]. And if there is a custom regarding this, we follow the custom. And a hired hand who is not permanent, who is called a "lakit" in the Gemara, who eats of his own and assists occasionally in the house of the employer, and sometimes he benefits him with food and drink and sometimes with a garment, and he does not have a fixed wage but rather he gives him something occasionally for his exertion—when he leaves the house of the employer, he strips off his garments that the employer made for him [ibid.].