On the Credibility of an Employee Regarding Working Hours

An incident involving a store employee: when he was hired, the employer stipulated with him the number of daily working hours, and the employee was to submit an attendance report at the end of each month. In practice, however, when the employee submitted the report, the employer claimed that the employee had not kept to the agreed times and that the number of hours in the report was incorrect. Therefore, the employee submitted a new, corrected report, according to which he had worked fewer hours than appeared from the first report. The store owner now claims that he no longer believes the employee at all, since by submitting the corrected report the employee himself effectively admitted that he had lied at the outset and demanded more than was due to him. It must be examined whether the employer is correct in this claim, or perhaps, since the arrangement was that the employee is trusted, the employer can no longer retract and is obligated to accept the corrected report and pay the employee accordingly.

The law that in a claim between a worker and an employer, the worker takes an oath and collects

A. The Rema (siman 91, se’if 3): One who incurred expenses on his fellow’s property with his fellow’s permission and claims reimbursement, while the defendant says, “I do not know,” the claimant takes an oath and collects. The same applies in every case where this one knows and that one does not know: the one who knows takes an oath. The Shach (se’if katan 24) writes: “And my father, my master, the Gaon, of blessed memory, and I say: here it is different, because he acted with his fellow’s permission; from the outset, his fellow trusted him upon an oath.”

So too it is ruled (in siman 182, se’if 3): One who instructed another person to handle some matter for him, and that person incurred expenses for it: if he spent more than is customary to spend on such a matter, the other need not reimburse him, for he did not anticipate that he would spend so much. But if he did not spend more than is customary, he must pay him. [And if there is a claim between them, see above siman 91, se’if 3, and siman 93, se’if 4].

A paid guardian who is exempt due to circumstances beyond his control takes an oath and collects his wage

B. Regarding a paid guardian who is subject to an oness and is exempt, the Shach (siman 303, se’if katan 5) cites the Maggid Mishneh (chapter 2 of Hilchot Sechirut, halachah 2) on the words of the Rambam, who wrote: “The Sages enacted that oaths are taken regarding consecrated property.” He writes: This is a statement in the Gemara there, and the Sages wrote that in these cases they are exempt by law even from the oath that the item is not in their possession, except regarding consecrated property, where there is an enactment; and this is the essential point. From the teaching stated in the Gemara regarding consecrated property, one can learn that a paid guardian who is exempt in cases of oness nevertheless, if an oness occurred, has not lost his wage, but rather takes an oath that an oness occurred and collects his wage. The Shach writes that these are correct words, for so it is proven in the Shas (Bava Metzia 58a). And so it is ruled in the Shulchan Aruch regarding documents (siman 66, se’if 40): if he was a paid guardian over them and they were stolen or lost, even through negligence, he is exempt from payment, but he loses his wage until he takes an oath that he guarded properly.

The Netivot (se’if katan 3) wrote that this oath, to swear and collect, is a Mishnah-oath, even where he does not swear under the laws of guardians, such as regarding consecrated property and documents. It is a Mishnah-oath, as in the case of a storekeeper acting on instruction. For although by strict law the storekeeper would not collect, as the Shach writes (in siman 92), because it is like “I do not know whether I became obligated,” nevertheless the Sages obligated him to pay based on the storekeeper’s oath. What difference is there whether he spent money at his instruction or performed labor at his instruction? And all who enter with permission—even if the employer does not know whether he performed the labor at all—the employer is liable. It is clear from the Netivot, who wrote, “What difference is there whether he spent money at his instruction or performed labor at his instruction,” that the matter of a worker’s wage can be compared to the matter of one who incurred expenses.

The law that a worker to whom the employer granted credibility is believed without an oath

C. It appears from the above that in a dispute between a worker and an employer, the law is that the worker takes an oath and collects. However, one may say that since today the practice is that oaths are not administered, but instead a compromise is made in place of the oath, the worker did not enter into employment with the employer on the assumption that in every dispute he would have to swear and thereby be forced to compromise and lose part of his wage. Therefore, we must necessarily say that “the employer trusted him,” meaning that the employer believes the worker’s claim without requiring him to take an oath.

This principle can be proven from the words of the Netivot (siman 91, se’if katan 22): “According to what I wrote above, it is possible that according to the author, even if the workers deny it and say that they did not take more than what was due to them, since he pays only one payment to the storekeeper, no oath is required, because he was the negligent party in not setting a fixed amount, and not the storekeeper.” It is clear from his words that since the storekeeper was supposed to set a fixed amount and did not do so, he is considered negligent and cannot require an oath. This can be compared to our case: since he agreed with the worker that he would work, but did not agree with him upon a specific method by which they would know how long he worked, that is, he relied on the worker and trusted him as to how many hours he worked. Clearly, it was not contemplated that he would have to prove this by oath. Therefore, the law is that he cannot demand an oath from the worker, since he trusted him.

When I presented these matters before my father, my master and teacher, shlita, he said that proof can be brought for my words from the Rema (siman 92, se’if 7): “Some say that regarding one who is suspect, the opposing party takes an oath and collects only if he did not know, when he dealt with him, that he was suspect; otherwise, he may not. For if not, everyone would deal with a suspect person, then swear and collect.” It is clear from his words that since, when entering into the transaction, he knew that the other was suspect and could not swear, the law is that he cannot swear and collect. So too in our case: since both the employer and the worker knew that the custom in our time is that where the law would require oaths, a compromise is made, logic dictates that the worker did not agree to perform the work on the assumption that the employer would say he does not believe him and that he would have to swear, and in our time, in place of an oath, they compromise so that he receives only part of the wage. Rather, the employer relied on the worker to say how much he worked and trusted him without an oath.

The view of the poskim that if it is evident that he is not credible, the employer is not obligated to believe him even with an oath

D. However, in the responsa Avodat HaGershuni (question 19), a case is brought concerning a tax collector in a city, who was later expelled from there because of the ruler. The community asked him to bring an accounting from the ledger, and he claimed from the community that they owed him money. The community answered him that since the records indicate that he falsified expenses, as the expenses and income were not written in an orderly manner, and also the total he wrote does not match the other records, his credibility has therefore been lost and his presumption of trustworthiness has been forfeited. Not only will they not give him what he requests from them, but the community claims a large sum from him, for they say that he received more than he recorded in his receipts, since it appears that he falsified some expenses in the ledger. Consequently, he has been established as a liar, and they have the right to claim from him as they wish and as seems to them correct.

The community also made several other claims against him, and he argued that the reason the expenses appear disorganized is that the ledger was locked in the community’s room, and therefore he wrote the expenses on another paper, and afterward he would write them in the ledger not at the proper time and not in order, wherever there was blank space in the ledger. And regarding other claims that the community raised against him, he asserted: “It never happened.”

He responds that we must clarify the law of a tax collector appointed by the community with respect to credibility. He cites that a communal administrator is trusted without an oath and need not even provide an accounting. But in the present case, since a defect arose in his ledger, even though he explains and gives a justification for why the entries differ from one another, nevertheless it has not left the category of a defect, for indeed the gates of excuses are never closed. If so, one can say that the community did not trust him on such a basis.

He brings that this is comparable to the position of Rabbeinu Kalonymus (cited in the Tur, siman 71, and ruled by the Mechaber, se’if 13): a document containing a clause of credibility, where the lender is found to be a liar in another matter through witnesses, the credibility clause does not help him. [It is explained in the Sma (se’if katan 24): The reason, as I wrote in Perishah in the name of the Baal HaTerumot, is that presumably he trusted him at the outset only because he was presumed trustworthy in his eyes; and now that he has been established as a liar elsewhere, his credibility has been impaired.] It is clear that the reason is that we are witnesses, as it were: had the borrower known that he was established as a liar, he would not have granted him credibility. And although there it states “through witnesses,” this is not necessarily so; rather, even if he has been established as a liar through some matter by which we regard him as a liar, that suffices to cancel the credibility. [And so Rabbi Akiva Eiger ruled on this basis (in his gloss to siman 71, se’if 13): it is not specifically through witnesses; the same applies if the matter is such that, according to what we hold, he is lying, even though there are no actual witnesses—he is established as a liar and the credibility is canceled.] He concludes: the general rule is that the aforementioned tax collector collects nothing from the community, even with an oath, for we are witnesses, as it were, that if the community had known of any falsehood regarding this collector, they would not have trusted him.

E. The Erech Shai (siman 79, 5) cites from the responsa Perach Mateh Aharon (part 1, question 74) a case of a partner who granted his fellow credibility regarding anything he would say he had given him, and afterward he contradicted his words: first he showed his fellow an accounting for a smaller amount, and afterward for a larger amount. He concluded that the person has been established as a liar, his credibility has been impaired, and he does not collect even with an oath. For if without the credibility clause he would not collect even with an oath when his trustworthiness has been impaired, then with an oath too he is not believed—even if he was not established as a liar through witnesses, but only by his own words. That is, in a case where credibility was granted to a worker, the law is that he is believed to state how much he worked without an oath; but if it is evident that he is not credible, the law is that he does not collect even with an oath.

The view of the Maharshach that even if one was established as a liar regarding one claim, he is not established as such regarding other claims

F. He cited from the responsa Orach LaTzaddik (Choshen Mishpat, siman 63), who cited from the responsa of the Maharshach (part 1, siman 196), that even if one was established as a liar concerning one sum of money, we do not establish him as a liar concerning another monetary claim, and these claims and accounts are distinct monetary matters. But he disagrees with this and holds that without doubt the entire partnership matter is one matter, and his reasoning is also difficult to understand. The Orach LaTzaddik also wrote that one should reflect critically upon his words. Nevertheless, the definite view of the Maharshach is not rejected because of the reservation of the Orach LaTzaddik. That is, the Orach LaTzaddik brought the responsum of the Maharshach: if in a partnership there are several matters of monetary claims, even if one was established as a liar regarding one sum, we do not hold him to be a liar regarding another monetary claim. The Orach LaTzaddik disagrees and holds that the entire partnership claim is one matter, and therefore if he was established as a liar in one of the claims, he is considered a liar for the entire claim. The Erech Shai wrote that logically it also appears to him unlike the Maharshach, but he writes that one cannot reject the Maharshach’s words on that basis.

Practical conclusion

A. In general, an employer must pay his workers according to the attendance reports they submit, because the very act of assigning them the completion of the reports is tantamount to saying that they are trusted by him.
B. However, where a clear defect in the worker’s credibility has been discovered, the employer is not obligated to pay for hours during which, in his view, the worker did not work. Even if the worker takes an oath, that would not be sufficient to obligate the employer, and the beit din must investigate and compromise in this matter.

From “Torat HaMishpat”