April 12, 2011 is the 150th anniversary of the Battle of Fort Sumter, the beginning of the American Civil War. It also is several days before the Jewish holiday of Pesach (Passover). While historically unconnected, the Civil War and Passover do have something in common. The former marked the beginning of the end of slavery in the United States, while the latter commemorates the end of the enslavement of the Jewish nation in Egypt. Though the issue of slavery in the Jewish and American legal systems is well beyond the scope of this blog post, there is one aspect worth discussing, as it is particularly relevant to life in modern society: the line between employment and involuntary servitude.
The Thirteenth Amendment of the U.S. Constitution, the first of the “Reconstruction Amendments” adopted after the Civil War, is undoubtedly the most frequently quoted source in any discussion of involuntary servitude in America. Section 1 of that amendment reads:
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
While the the exact meaning of the term “involuntary servitude” may be up for debate (see, e.g., Nathan B. Oman, Specific Performance and the Thirteenth Amendment, 93 Minn. L. Rev. 2020 (2009) (available here)), it is commonly accepted that the Thirteenth Amendment is the basis for an employee’s right to unilaterally end his employment. For instance, one court has said that “[t]here is no doubt as to the constitutional right to discontinue an employment or to refuse such employment. The Thirteenth Amendment accomplishes the purpose ‘to make labor free, by prohibiting that control by which the personal service of one man is disposed of or coerced for another’s benefit, which is the essence of involuntary servitude.'” U.S. v. Petrillo, 68 F.Supp. 845, 849 (N.D. Ill. 1946) (quoting Bailey v. Alabama, 219 U.S. 219, 241 (1911)). Also, “[a]n unwilling employee cannot be compelled to continue to provide services to his employer either by ordering specific performance of his contract, or by injunction. To do so runs afoul of the Thirteenth Amendment’s prohibition against involuntary servitude.” Beverly Glen Music, Inc. v. Warner Communications, Inc., 224 Cal. Rptr. 260, 261 (Cal. Ct. App. 1986).
Jewish law has similar concerns and laws regarding involuntary servitude, albeit for different reasons. For example, Rav ruled that a worker is permitted to quit even in the middle of the day and may not be forced to continue to work. Bava Metzia 10a. Rav’s reasoning is based on the verse: “For the Children of Israel are servants to Me. They are My servants, whom I took out from the land of Egpyt. I am Hashem, your God.” Vayikra (Leviticus) 25:55. The Gemara explains that Hashem’s declaration that the Jews are His servants means that they are exclusively His, and they cannot be compelled to serve anyone else against their will. He acquired the Jewish nation as His servants by redeeming them from slavery in Egypt––a particularly appropriate idea to reflect upon as Passover approaches. Consequently, a Jewish individual must subordinate himself or herself to Hashem’s Torah; he or she must not be completely subject to the will of another human being, which might conflict with that of God. See Targum Yonasan, Vayikra 25:55.
Thus, in contrast to American law, which outlaws involuntary servitude because it is inconsistent with the equality of men and individual liberty, Jewish law restricts the right of an employer to compel an employee to work because it seeks to promote the service of a Higher Authority.
There are some qualifications to Rav’s halacha. First, although he may be entitled to quit whenever he desires, and he is entitled to payment for the work that he did perform, a worker mus nevertheless pay back any wages given to him that he did not actually earn. Shulchan Aruch, Choshen Mishpat 333:3-4. Also, an employee might not be allowed to stop working if it will cause a loss to the employer. Id. 333:5.
Finally, one interesting extension of Rav’s principle is that a worker may not agree to work for more than three consecutive years. Rama on Shulchan Aruch, Choshen Mishpat 333:3, quoting the Hagahos Mordechai. This is because a term of more than three years bears more of a resemblance to servitude than to employment. Shach, ad loc., § 17. However, it should be noted that Tosfos seems to disagree to this notion and maintain that a term of more than three years is permissible, as they distinguish between a true eved ivri (Jewish slave), whose service can only end with the giving of a shtar shichrur (an emancipation document), and an ordinary worker, who, in accordance with Rav’s halacha, may quit whenever he wants. See Tosfos, Bava Metzia 10a, s.v. Ki Li; Be’er Sheva, Responsa § 64; Shach § 17.