Question:
I hired a babysitter to watch my children. Must I pay the babysitter as soon as I return? Does it make a difference if the babysitter asks for the money or not and if she is a child or an adult?
Answer:
The Torah (Vayikra 19:13) requires one to pay his employee within the time period when the employee finishes his job. There are two time periods in a calendar day: the day and the night. Therefore, if one hires a babysitter to work from eight at night until midnight, he must pay the babysitter before the end of the night. [The end of the night is at first light (alot hashachar in Hebrew) which is about seventy-two minutes before sunrise.] Therefore, if you don’t pay the babysitter upon your return, you will need to bring her the money before daybreak.
One should not treat this matter lightly. One who does not heed this requirement violates both a positive and a negative commandment. (Vayikra 19, 13; Devarim 25, 24-15) The mitzva of eating matzah on the night of Seder or blowing shofar on the first day of Rosh Hashana is only a positive commandment and yet no one would skip these mitzvos. Therefore, certainly, this mitzva, which is backed by both a positive and a negative commandment, shouldn’t be neglected.
The Zohar (Parshat Kedoshim) states explicitly that the punishment for one who doesn’t pay on time is to perish before his allotted time and the reward for one who observes this commandment scrupulously is that Hashem will add to his lifetime.
In general, one is not required to pay his employee on time unless the employee requests payment. The reason is because one may waive a monetary right (mechelo). Usually, we interpret one’s failure to request payment as a sign that the employee waived his right to receive payment immediately.
The Chofetz Chaim (Ahavas Chesed, Volume 1, Chapter 9, Section 1 and the footnotes) states that one must be honest and realistic in determining whether the employee really meant to waive his right. For example, if the employee is weak and timid, one cannot assume he meant to waive his right. Generally, children, even if they reached bat mitzva do not have the temerity to request payment. Therefore, even if the babysitter did not ask for payment one must pay on time.
Often one hires a babysitter who is under the age of bat mitzvah. One might entertain the thought that he does not have to pay minors on time. The Chofetz Chaim (ibid. section 5) addresses this issue as well and rules unequivocally that there is no difference between minors and adults. The Rashba (Responsum; Volume 3, responsa 99) in fact writes that one who withholds wages from a child is classified as a thief by the Torah in the same manner as one who withholds an adult’s wages.
There is one frequent situation where one would not violate this prohibition. The mitzvah of paying an employee on time does not apply if at the time of employment it was stipulated that the remuneration will be paid at a later date. Therefore, if one tells the babysitter she will return late but the babysitter need stay only until a specified time, it is clear that the babysitter will not be paid immediately upon completion of the job. In this situation, the babysitter agreed at the time she was hired to accept payment at a later date. Since this was a condition that was stipulated at the time the babysitter was hired, it is valid even if the employee is a minor. Nonetheless, even in this situation it is proper to leave her pay on the premises and allow the girl to take her payment at the time she departs so that she will not to wait for her pay. (Shach 339,2 in the name of the Sefer HaChassidim)
Rabbi Yosef Fleischman is head of the Kollel Choshen Mishpat – Institute for Dayanim, Jerusalem, Israel.
The Institute for Dayanim is pleased to answer queries from the general public regarding monetary and business halachah, and to offer advice regarding the drafting of halachically valid contracts, wills etc.
The Institute for Dayanim can be reached by email at beisdin@neto.net.il, or via the website, www.institutefordayanim.com
The words of this author reflect his/her own opinions and do not necessarily represent the official position of the Orthodox Union.