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Gentiles Working for a Jew

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Rabbi Yoel Lieberman

Av 6, 5781
Question
1/ A Jewish person owns a small computer company, based in London, the company installs software and hardware and provides 7 days per week remote support to its clients during the year. 2/ This remote support service is operated by 2 non-Jews, based in India, working from home as freelance consultants. They do not have a formal contract but an informal note and verbal agreement saying that their duty is to provide a help desk service when clients call for help. The company compensates the independent consultants by 12 monthly payments. 3/ The company office and service are closed during Shabbat and Hagim and no Jewish clients call during these times, except gentiles who may need urgent help, and the people in India deal with the calls directly. Questions: 1/ Is there a potential problem to the Jewish owner of the company with the mode of operation described above? 2/ If work hours/days were to be specified to the consultants, would this pose a potential problem and if yes, what is the solution? 3/ Thousands of factories and workshops are owned by observant Jews, and many of these facilities work 24x7 for the whole year because it is not possible or practical to stop the processes for Shabbat or yom tov, so how was this issue resolved? 4/ Is there a standard form of contract to reflect the halakha applied in the cases described above, and if there is, can we see it? Many thanks for your help.
Answer
ב"ה Shalom, The answer for your question was written by Rav Udi Odesser in Hebrew and appears also in the counterpart Hebrew section of this website. In this answer in English which I have translated I have added only some minor additions and clarifications for the English readers. 1.In regard to the employment of a non-Jew on Shabbat who works for a Jew, it is forbidden. Since the work of the non-Jew is needed particularly on Shabbat at the hours which you specified, through which the company is now considered one which provides international service. Therefore, there is indeed a problem with this mode of operation. 2.In the way things were described, there is benefit from the work of a non-Jew for the sake of the Jewish owner of the company who has hired the non- Jew for his services. Benefit from the work of a non-Jew which a Jew needs specifically on Shabbat is forbidden. (See Shulchan Aruch Orach Chaim 244:5 and commentaries there. And it is not because of "Marit Ayin".) Apparently, one solution would be that the hired non-Jew would receive his payment for his services on Shabbat directly from the gentile customers who require the services. I can imagine that practically, this is not so simple. Another possibility to be considered is to bring in a non-Jewish partner to the company and to write a legal contract which would define the non-Jew as a real partner of the company. In this situation, the non-Jewish partner may work on Shabbat as long as he does so on his accord and is not required to do so.(Because in that case he would be considered an employee of a Jew).In addition, the profits coming from work on Shabbat would belong to him and not the Jewish partner. Then the non-Jewish partner would be able to the hire the services of other non-Jews as employees of the company for Shabbat and holidays. (See Shulchan Aruch Orach Chaim 245:1 and Rema ad loc. ) When the Jew requires that the non-Jew do his work particularly on Shabbat, it is forbidden, since he is considered his employee. The Halachic concept of "Kablanut"," contracting" means that the Jew does not care when the work is done. His only care is that the work be done by a certain time and within this time the non-Jew can decide when to do it. Usually, in this type of work, the worker is paid for the job, not for the hours in which he did the job. 3. .I certainly cannot speak for all the observant Jews who manage companies which run 24/7, but my assumption is that they consulted Rabbinic authorities who instructed them how to run their companies in the proper way even though they operate on shabbat. The reality of running a company with non-Jewish partners is not new, and observant Jews deal with the issue according to the requirements of Halacha. There are those who rely upon the opinion of the Maharam of Rotenberg as elaborated by Rav Moshe Feinstein zt"l Having said what was explained in #2, the Shulchan Aruch Orach Chaim 244:6 quotes a response from the Maharam of Rotenberg who allowed in case of monetary loss to hire a non-Jew as a contractor to collect customs duty, although it is obvious that he will work on Shabbat and that is the desire of the Jew who hired him. Later commentators are in dispute if this leniency of great monetary loss, includes only an actual loss of profit or also prevention of profit gain. In Igrot Moshe, (Orach Chaim vol. 4:53) , Rav Moshe Feinstein zt"l allowed a Jew to purchase a bank which hires non-Jewish clerks, even though they will definitely have to work on Shabbat due to a large monetary loss. Rabbi Moshe Feinstein , IGROT MOSHE: "The Shulchan Aruch Orach Chaim 244:6 deals with big businesses, in which a Jew is in charge of customs duty collection and can hire a non-Jew to collect the duty on Shabbat as a "contractor", which means that he tells the gentile "when you collect 100 dinar, I will give such and such amount". Similarly, the Rema writes in regard to a Jew who is in charge of minting coins for the king. The Magen Avraham (244:17) writes in regard to salt producers which were big businesses in their time, and Jews were allowed to enter such businesses even to begin with. This "Heter" which although it was based on the premise that the gentile works on his own accord , was not a real Heter because the Heter of contracting is in a fashion where the Jew does not care when the gentile does the job and the gentile has the possibility to do so on a weekday and if the days are not enough the gentile can work nights as well. The result being that what the gentile does on Shabbat has nothing to do with the Jew. But since the gentile has other jobs and wants to sleep at night, he chooses to work on Shabbat. But when the work must be done on Shabbat as in case of customs duty, since customs duty must be collected from those who come on Shabbat and it is not in his hands to determine that people come (only) during the week, (and similarly in the case of minting coins for the king which must be done at the time the king ordered to do so, and so in the case of salt production for which he must produce the maximum amount for each week and therefore it must be done on Shabbat as well) this is not the real Heter of contracting. But since the Rabbis considered big businesses as a substantial monetary loss and not just the prevention of making more profit, due to the agitation (of the owners ) of such businesses they allowed it. {the issue of agitation will be explained later Y.L.}The Magen Avraham allowed it even in a case in which we are not concerned that due to the Jew's agitation he may commit a more serious violation ( of laws of Shabbat) and it seems that the Mishna B'rura 244:31 also allowed it. How much more so in regard to a big business such as a bank, that it should be included in this Heter. In this Heter through contracting, the Rabbis allowed in a case of great monetary loss and for big businesses, since the gentile will in any case work on his own accord, even to engage in business to begin with and even if it is "Farhesya" meaning that is known that this is a Jewish owned business…" Practically, the question is if there is a great monetary loss or not and even if that is the case, the employment must be in a way "kablanut" contracting, and in way that the non-Jew functions on his own accord much as possible. This dispensation stems from the principle that a person "is agitated about his property" (See Shabbat 120b) and if we don't allow a Rabbinical prohibition (to be violated), there is the concern that a more severe, Torah law will be violated. The Halachic authorities are also in dispute if the Heter can be used when the gentile will violate only a Rabbinic prohibition (such as writing on a computer, which according to many Halachic authorities is a Rabbinical prohibition only ) . There are those who are stringent (Bet Yosef 244) but there are those who are lenient because it is "Shvut de'shvut" (meaning even the violation of Shabbat by the gentile is not a direct one) (Magen Avraham 244:17) 4. In regard to versions of partnership contracts with a non-Jew, you may look at the Sefer "Orchot Shabbat" (part 2, -pgs. 566-567) .Refer also to (דברי חיים חלק א סימן ס"ז, שו"ת הר צבי או"ח חלק א סי' קכא-קכב, שו"ת אגרות משה אורח חיים חלק ד סימן נו, שו"ת מהר"ש ענגיל ח"ד סי' נט, ישיב יצחק חלק ג סי' ד. ) My advice to you, even after having prepared this lengthy answer, is still to consult with your local Rabbi who will be able to guide you through preparing a proper contract and to your run your business in full accordance with Halacha. All the best
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