Rav Avi: Welcome to Responsa Radio, where you ask and we answer questions of Jewish law in modern times. I'm Rabbi Avi Killip, here with Rabbi Ethan Tucker, Rosh Yeshiva of Mechon Hadar, a center for higher Jewish learning based in New York City. How are you doing today?
Rav Eitan: Good, I'm doing great.
Rav Avi: Great. I'm excited about today's question. Alright. So our question today seems like it is a question mainly helpful to people with children, but I think it actually will have implications that will go much broader into how we structure our communities.
The questioner writes: "What's the best way to pay a babysitter for care delivered on shabbat or a holiday? Do I need to do a flat rate, or can it be hourly? For example, my infant son is too young to appreciate the seder, and I'd rather him go to bed on time. Can I have a sitter stay at home while I go to a seder elsewhere and pay him or her after chag for the number of hours, or should I prepay for a set amount of time?" So, it seems to me like the concern here is both, I guess, whether you could pay the person on shabbat, but even moreso, can I count the hours, can I be paying someone hourly for work done on shabbat?
Rav Eitan: Yeah. So I think it shouldn't surprise people that parents have been trying to offload their kids for a long time, and this is something that even though at first it might seem surprising, this exact question, at least in one form, comes up already in the Tosefta, in really early rabbinic sources. Here, though, I want to emphasize the text that I want to talk about a little is actually talking about a Jew. And we have to think about that question first, of Jews using Jews for various tasks on shabbat, before we get to the question of what it means to have a non-Jewish babysitter, which is what this person is asking.
Rav Avi: That actually came up -- I remember growing up, I used to teach in the Hebrew school on a Saturday morning program in a Conservative synagogue. So I'm also curious to hear how that plays in in terms of, you know, we were paid for the work and we were working on shabbat morning.
Rav Eitan: Yeah, so it's very much connected to that. So let's jump in to this Tosefta. The Tosefta says if you hire a worker, you hire someone to watch your baby, right, literally the case we're talking about, you are not allowed to give that worker their pay for the work they do on shabbat. However, the text goes on to say, if they're hired for a full week or for a full month or for a year or for seven years, you have a sort of longer-term relationship with them, then you're actually allowed to fold in the amount that you would pay them on shabbat into the larger sum. So the main thing you're not allowed to do is to say to someone, okay, you're working for me for seven days, the rate for each day is $100, and therefore I pay you $700 for each of the seven days that, you know, you worked, which includes shabbat. What you instead have to do is to say I'm hiring you for the week for $700, and then these are the hours you're supposed to show up.
And the idea there seems to be that we can then tell ourselves a story -- at least the optics of this are one where you are being paid for the six days of the week; for the seventh day of the week, you're basically doing a favor or continuing to do some kind of task, but really it's as if each of those other six days has an additional percentage, an additional one-sixth of the amount you'd be paid on shabbat, kind of folded into it. Alright? And that's the overall kind of system for paying a Jew -- remember, again in this case -- for that, and going back to your question about Hebrew school and rabbis and cantors, that has generally been the approach to justifying that, is that either it's the time they spend preparing the lesson beforehand that you're paying them for, or, you know, they're a highly compensated employee during the week for the relative amount of work that they're doing, but that we don't formally designate the time on shabbat as being something you're paid for.
Rav Avi: Okay. So again, I would have said oh, that feels very sneaky, getting around th system or the halakhah, and here you're bringing a very early source, you know, pre-Talmud, maybe pre-Mishnah, you know, the same time as the Mishnah, that's validating that as a framework.
Rav Eitan: Yeah. And -- look. Some of this is just sort of coping with reality, and the fact that people do need tasks to be done for them on shabbat. And it's not necessarily reasonable to expect that everyone can create a certain culture of kind of other people doing each other favors on shabbat in a way that involves no exchange of money. But what I think is actually a little more than a workaround here is the rhetoric and the framing of this is intended to preserve a certain kind of culture where it's not okay to ask people to do things for money on shabbat, and we minimally demand that it's kind of out of sight, out of mind, or folded into something larger, which at least symbolically allows us to say well, the ideal way that we would be interacting around these things is in fact that when people need things on shabbat, other people help them out gratis, you know, as a favor, as part of creating that kind of strong community. But yeah, it's there, because that is not always a realistic way to get things done.
Rav Avi: So that seems to be speaking about hiring a Jewish person -- is there a difference if we're hiring a non-Jewish person?
Rav Eitan: Okay, so this really is an example where close reading makes a big difference. The phrase that the Tosefta used when it says you shouldn't pay the Jewish worker on shabbat is, you should not give that person their pay. Lo yiten lo scharo. And you can emphasize that directive in two different ways. You can say, lo yiten lo scharo, you shouldn't give them their pay -- that is to say, the real problematic action here is handing over money -- I don't even mean physically, but sort of earmarking pay for someone on shabbat, or it could be no no no, the problem here is you're not supposed to give this specific Jewish person their pay on shabbat. And depending on how you read the emphasis there, you might come to two completely different opposite rulings regarding a non-Jewish babysitter. Right? If the issue is Jews shouldn't be involved, essentially, in earmarking payment on shabbat, then it doesn't matter who the babysitter is and whether they observe shabbat or not -- that's an inappropriate commercial relationship to be setting up on this day.
Whereas if the emphasis is on the payment received by the Jew, it may be totally innocuous to arrange for someone not Jewish to be paid; the only thing the Tosefta was concerned about was you being an agent of someone getting paid, making some kind of profit on shabbat. And so the Tosefta itself is very unclear. You have to sort of take an interpretational stance on this. And interestingly, as far as i have found, there is no medieval or even really early modern discussion about the case of paying the gentile worker, the non-Jewish babysitter, on shabbat. Like, if you look in the Shulkhan Arukh, the codification of the Tosefta is just the language of the Tosefta. Basically how to deal with paying Jews and doing it in this way that we sort of fold shabbat into something larger. So, it waits until we get basically to the 18th century, until people start to weigh in on this question. And as I'm sure will not shock you, there is a debate about it, and not everyone agrees.
Rav Avi: I'm shocked!
Rav Eitan: Shocked. So, Rav Uziel ben Tzvi Maisels is one who weighs in here, in 18th century Poland. He writes a work called Menorah Hatehorah. And he says it's forbidden to pay a non-Jew on shabbat. So he takes this reading, based on the sort of problem being the giving of the money itself, the earmarking of the money, and he says even with someone not Jewish, you have to include those tasks as part of a wider scope of responsibility. So, you know, if you were asking him this question, he would say, well, you can have someone babysit your kid the seder night, but you should arrange it that they're also coming, let's say, on the night of Purim, a couple Sunday nights so you can go to the movies, and you tell them, I need you on these four dates, and for the total time of those four, I would pay you x, does that sound okay? Alright? He would require that you fold it in, would not let you have a sort of segregated, financially earmarked babysitting job for the night of the seder.
That seems to be his answer, though I will say if you look closely at that text, all the things he lists there when he's discussing paying someone non-Jewish on shabbat are actually problematic tasks. That is to say, they're shabbat-inappropriate tasks, either they're a melakhah or there's something that doesn't feel sort of like it's within the spirit of shabbat, and it's not clear therefore that they really intended his logic to extend to something totally permissible like babysitting. Right? I mean, there's no problem with watching a child on shabbat. But it is true, I don't want to kind of mislead here, his language seems like it is broad, focused on the concern of paying money, and it seems like it would extend to babysitting as well. On the other hand, the Mishnah Berurah, now in late 19th, early 20th century Poland, comes in and says the only problem with paying a Jew to work on shabbat is that that will sort of make you an accessory to him or her sinning by receiving that payment. In other words, the Mishnah Berurah thinks the whole problem with that transactions on shabbat with workers is the employer shouldn't do that because an employer shouldn't be party to something that's inappropriate. But the second the worker is not Jewish, then that concern disappears, and then you in fact have most later authorities follow the Mishnah Berurah and they say absolutely, there's no problem whatsoever with hiring someone who is not Jewish to do this work, but you know, several later authorities make very clear, you obviously can't hand them the money on shabbat, it's still forbidden to actually handle the cash. And Shemirat Shabbat K'hilchata, one very well-known halakhic compendium and guidebook says you shouldn't even point to where the envelope is lying on the counter on shabbat.
What I actually like about that is that ruling is still trying to preserve some notion of the idea that when you are in the space of shabbat itself, even when you're interacting with people who are not Jewish, you should not be in a financial or commercial state of mind. And so, the way to sort of set that up is, when you're arranging that this person will come over to say thank you so much, I'm so glad you're able to help me with this, I want to let you know the money will be on the counter, so remember to pick that up when you head out, you know, take care of all of that before Yom Tov, and then you head out to the seder and you come home. My suspicion is this is probably someone who's lenient if the person's about to walk out the door and you're worried, you know, they're gonna walk out without their pay for the evening to somehow at least obliquely remind them where the pay is.
But there is something, I think, powerful there about trying to balance the two values here, which is on the one hand being realistic -- that person's not Jewish, there's really no problem with them earning money -- but even if that position wins out, there does feel like there's something beyond their earning that compromises the spirit of shabbat when you're thinking about how many twenties did I leave in the envelope?
Rav Avi: Yeah, there's a lot here actually, I think, to unpack that I want to talk about with you. One idea that really strikes me from what you described is that -- well, first of all, the idea that who's responsible in a transaction to make sure that what's happening should be happening and is right. Is it the person who's doing the hiring, or is it the person who's doing the job? And in this case it may be, you know, in the case of two Jews interacting, it maybe a question of, you know, whose melakhah is it taking a role that you shouldn't be taking on shabbat, is it the person paying or the person doing the work?
Which I think just provides an interesting frame that probably could lead into a lot of conversations about hiring process. But there's also something really striking about the way you're describing that a person we hire to do work on shabbat or chag should be someone who works for us in a broader way -- just in terms of emphasizing the importance of having real relationships with people, because even though what they're saying is you can't pay them to work just on this time, but actually what you're describing of, well, hire them for four nights, make them a regular babysitter, and if it's not a babysitter, if it's someone doing some other work, it sort of seems like it's pushing us to say, have an employee that you have an ongoing relationship with and that especially on shabbat and chag, you're not gonna have sort of random people dropping into your life who are not somewhat a part of your life or somewhat a part of your family already.
Rav Eitan: You know, I want to pick up on what you're saying, because I think it's a really good angle here, and also just share some of my own practice around this. I think something is also being said here about what the nature of shabbat is. One of the things that is essentially inextricably bound up with employer-employee relationships, really anything where money is changing hands for some kind of goods and services, is some degree of hierarchy. There is some element where the person who is paying is getting something from the person who is providing, and that itself is kind of antithetical to what shabbat is supposed to be, in terms of it being a flattening time, a sort of socially equalizing time -- I mean, one of the most remarkable things, the ban on touching money on shabbat and the way in which it means that the richest person in the community and the poorest person in the community, to a certain degree, are the same on that day, I find that to be one of the most incredibly powerful aspects of the day, and sort of its regulation through rabbinic halakhah.
And that's an important aspect, I think, of this too. When you talk about having the broader relationship, when the person is there in some broader context, it blunts, a little bit, the notion that, well, on shabbat, they're here to serve me. And this is the other piece that I'll say, that I think where you have to be a little careful about not overly applying the leniency here that nonetheless is accepted -- you know, the Torah's vision is that you and your servants and the strangers in your gates are required to rest on shabbat. And there's an aspect there of kind of affecting the entire atmosphere, and also about grounding a person in their kind of most intimate circles, in their family, in their community, in a way that ought not to require support staff. And one of the things I think you have to be very careful about is, to the extent you find that on shabbat and Yom Tov you need so much support staff just to do the basic rhythms of the day, there might need to be something reevaluated about how you're spending that day, or how it's playing out. Meaning, this is an institution that is meant not to require support staff for the most part, certainly not in a kind of paid way.
Now, of course everything requires, you know, support staff, and history of gender and feminism tells us that there was always sort of shadow work going on in the kitchen and in other contexts. And yet, there is sort of this added level when you are hiring someone from outside your home to come in. And my own practice on this is generally to really avoid having babysitters almost at all on shabbat and Yom Tov, unless it's a context where it's something where it really feels like a d'var mitzvah is at stake. There's sort of some really positive, important religious action that I need to do that I otherwise won't be able to pull off. So when I've been in a professional capacity, let's say leading davening on Yom Kippur or various things like that and I've had a little baby at home, or my wife and I are co-leading something and there's just not a way that we're gonna be able to pull it off without some help -- okay, that feels like an ad-hoc situation where that might make sense.
And for the questioner here, it may well be that the logistics of the seder here are such that it makes sense for her and for her family to be able to be fully into the moment while getting some support with a kid. But I would push that I think as much as we can stretch ourselves and maybe rearrange things such that we see that sort of taking care of our own without the need for support staff to be at the center of the shabbat experience, I think that's actually really important and valuable.
Rav Avi: I appreciate your raising the comment about women's work. I think that really is very important here to this conversation. And it's something that's been playing out a lot in sort of feminist analysis of the lean-in idea, where people critique the concept of lean-in to say the idea that women at a certain class level should be working more is only a system that only works if you can then rely on hired help, that is usually women of a different class. And that there is something to be said for, well, you probably didn't need to hire a babysitter if you didn't care that much that the women in the family got to the seder. If one of the women could just stay home with the other kids, then that maybe didn't matter that much, but that if you really believe that you want everybody to be able to participate, if you want everybody at, you know, to make it to whatever the chag event or services are, that in some ways that is gonna shift your need to rely on hired help and to just be very thoughtful about how we structure that, and how we approach that.
Rav Eitan: Yeah. And there are clearly more and less thoughtful ways to do it, and there's different strategies for different kinds of rituals and different communities -- you know, in the context of, like, Purim, it works pretty well in a lot of communities to have multiple readings that different people go to and sort of switch off. But something like the seder, you can't do that, but I think a kind of equalizing and egalitarian mentality beyond gender but also including class around the observance of shabbat and core rituals, means that then you also have to be mindful of how to structure those.
Yeah, it might be that a seder that really wants to include everyone, maybe it has to be a little bit shorter, or maybe people have to be willing to, like, put people up in their homes so their baby can crash there, or any number of things that sort of, we stretch some of the other variables, because I would hate to end up in a world where it turned out that for the Jews to observe their core rituals, there needs to be a whole extensive phallynx of non-Jewish babysitters sort of waiting in the wings to make it possible. Even as clearly in a local circumstance here and there, that may obviously be the thing that makes sense. And the person in question may be very happy to earn that additional income, or as it might be the case, fold it into the income they're earning on other times that they're coming by.
Rav Avi: Yeah. So I'll end with an anecdote: last year, the night of the seder and the day of Pesach actually fell out on Easter, and as a result of that, it was very hard to find a babysitter, and my family ended up spending the night -- we went to two different homes for the two nights of seder, and we actually spent the night out at two different homes those two nights with our young son so that we could put him to bed in those homes, which was really, you know, an amazing experience of hospitality, of hachansat orchim on the part of those hosts, and at the same time felt pretty absurd and made the whole observance a little bit much in a way that I think if this year we can get a babysitter, we'll certainly go for that option.
Rav Eitan: It's a great story. May we all be, may we all merit to have plenty of bedrooms to host other people in.
Rav Avi: Amen, amen.
Rav Avi: Have a halakhic question you'd like answered on the show? Email us at halakhah@hadar.org. And you can also leave us a phone message at (215) 297-4254. Responsa Radio is a project of the Center for Jewish Law and Values at Mechon Hadar, and is produced by Jewish Public Media, which creates, curates, and promotes excellent Jewish content.