Hilchos Choshen Mishpat

Volume II : Number 18

Using An Employer's Property And Time

Question:

A. Is it permitted for an employee to go on a diet to lose weight, if the diet will cause him or her to be weak and will affect their job performance?

B. Is it permitted for an employee to "moonlight" at another job if he will be too tired to effectively perform his job the next day for his regular employer?

C. Is an employee permitted to use business and office property for personal use?

Answer:

1. A. It is permitted for an employee to go on a diet even for cosmetic purposes. However, if the employee sees that it is preventing him (or her) from fulfilling his duties to his employer (whether because of physical weakness, or an inability to mentally focus on the work) - he must check with his employer to make sure that the employer does not mind. (1)

2. B. It is prohibited for a worker to take extra jobs after he completes working for his regular employer if this will result in his not being able to perform his job properly the following day. Obviously, if the employer agrees, or if he is working overtime for the same employer, he is permitted to do so even if his daytime performance will be affected.

3. It is most definitely forbidden for an employee to do a side job for someone during working hours for which he is being paid by his primary employer. (2)

4. C. An employee may not use any of his employer's property for personal use without permission from the employer. Therefore, an employee may not use the office telephone, copier, or any other business equipment for non-office use.

   If the employee knows that the employer permits such use, even if only reluctantly, he may do so.

   If the employer does not permit personal use, but it's well known that many of the workers use his property without permission when he is not looking, it is still prohibited. The fact that "everyone does it" does not in any way create a "Minhag HaMedina" (custom of that society) that would permit such a thing. (3)

5. D. If the employee is unsure about how his employer feels about personal use of business property, and is unwilling to ask him directly, he should make the following determination:

   If he has no qualms about using business property for personal use in the presence of his employer and does not attempt to hide this from him, he may do so. If, however, he is afraid to do this in his presence, or even if he is uncomfortable doing so in his presence (and he does not know that the employer permits this), he should refrain from using business property for personal use. (4)

6. E. A worker is not permitted to pray at his employer's expense without his approval. Therefore, a worker who has not yet prayed Shacharis and has come to work should not sign in until he has completed his prayers and is able to start work.

7. Mincha or Maariv should be prayed during a time when the employees have a break, or else it should be considered a personal break and deducted from the salary.

   However, if the employer agrees that he may pray during work hours, or it is well known that in this work place this is done and the employer has no problem with it, he may pray during working time.

Sources:

((1) We should just preface this discussion by stating that regarding the general question as to whether or not a person may diet for purely cosmetic reasons, Rav Moshe Feinstein Zatza"l (Iggros Moshe Choshen Mishpat Vol. 2 Simanim 65-66) has already determined that this is permissible, and there is no prohibition of injuring one's self involved in this.

The Rambam at the end of Hilchos Sechirus, quoted in the Shulchan Oruch (Choshen Mishpat 337:19-20) states - "A worker is not permitted to work at night and hire himself out during the day. He may not starve or torture himself (through food deprivation) and feed the food (that he has thus saved) to his son, because this is theft of the work of his employer, since he will be physically and mentally weakened and will be unable to do the work for his employer with strength. Just as an employer is warned that he must not steal his employee's wages nor may he delay paying them, so too the worker is warned that he may not steal the work of his employer and relax a little here and a little there. Rather he is obligated to be exacting of himself to work during the entire time allotted for working with his full strength, as Yaakov Avinu stated (Beraishis 31:6) "... with all of my strength I have worked for your father!", and we find that he was not only rewarded in Olam Habah (the world to come) for this, but even in Olam HaZeh, as it says (ibid. 30:43) "And the man became very prosperous..."

(2) The Rema (Choshen Mishpat 333:5) states that it is forbidden for teachers (or any other hired workers) to take second jobs, to go to sleep late, or to eat food in a manner that will affect their ability to do their work properly. Any worker who does so is considered negligent, and this may be used as grounds to dismiss him.

Therefore, if a worker is interested in going on a diet, or because of financial difficulty must take a second job, the original employer who is paying wages for "quality" work is not obligated to suffer in any manner regarding this. If a doctor has prescribed a diet for medical reasons, the worker must report this to his employer, and they should come to some kind of consensual agreement regarding this, based on the customs of that community.

(3) Tosafos in the beginning of Bava Basra (2a D"H B'Gvil) state that there are certain customs that are Minhagei Shtus (foolish customs), and a person should not rely on them even at times that our Rabbis state that "one should go after the Minhag HaMedina." Therefore, if all employees embezzle from their employer, this is a prohibited and foolish custom, and a person may not conduct himself in this manner.

(4) This determination is stated in the Shulchan Oruch (Choshen Mishpat 358:5-10).

Feedback is appreciated! It can be sent toatendler@torah.org.

This week's class is based on a column by Rabbi Tzvi Shpitz, who is an Av Bais Din and Rosh Kollel in the Ramot neighborhood of Jerusalem. His Column originally appears in Hebrew in Toda'ah, a weekly publication in Jerusalem. It has been translated and reprinted here with his permission and approval.

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Please Note: The purpose of this column is to make people aware of Choshen Mishpat situations that can arise at any time, and the Halachic concepts that may be used to resolve them. Each individual situation must be resolved by an objective, competent Bais Din (or Rabbinic Arbitrator) in the presence of all parties involved!