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 Shabbat Parashat Chukat| 5765P’ninat MishpatPenalty for Delay in Paying Salary - Excerpts from Piskei Din Rabbaniim - vol. XV, pp. 240-253
Case: A school was late in paying a teacher’s salary. The teacher now demands that the school add on to the salary due, in accordance with par. 17 of The Law to Protect Wages, which sets schedules of penalty payments in such cases. The school responds that they cannot pay, as an extra payment for delaying to pay a financial obligation is a violation of the laws of ribbit (usury).
Ruling: The Or Zarua (Bava Metzia 181) brings a machloket whether the laws of ribbit apply to an obligation of wages. The great majority of poskim say that ribbit does apply, based on Bava Metzia 73a. The gemara says that in order for workers to get paid more for their work at a later date than is customary, they have to continue working until they get paid. Only in that way do they avoid issues of ribbit, as the payment is not considered overdue, since it is normal to pay workers at the end of their period of work.
The Maharashdam (YD 222) presents a compromise position, that if the workers demand extra payment, it is ribbit,but if the employer volunteers extra pay because he delayed payment, it may be paid. This is a strange distinction, as voluntary ribbit is forbidden, as well. The explanation is apparently as follows. Everyone agrees that there is no Torah prohibition on obligations stemming from wages, but Chazal forbade it because of its similarity to classical ribbit. Purposely withholding money owed is a form of stealing. It is usually sufficient for a thief to return the property stolen (or, in this case, pay the wages) and one cannot demand compensation for lost earnings in the interim. However, it is a positive thing for the thief to compensate in order to fulfill a moral obligation. Thus, in the case of delayed wages, a voluntarily addition to the salary is seen as such compensation, not as an extension of ribbit.
However, a law that requires such penalty payments violates the laws of ribbit. We cannot say that the law turns an agreement to hire an employee into a voluntary acceptance of extra payment, for the following reasons. Firstly, the law does not distinguish between a case where payment was withheld improperly, making the employer like a thief, and a case where he lacked the funds to pay. Secondly, the high level of penalty goes beyond an attempt to compensate for the employee’s losses from the delay. Given that the legislated payment is a form of ribbit, prior agreement does not justify it (Shulchan Aruch, YD 177:16). Although there is a concept that dina d’malchuta dina (the law of the land is the law), that refers to certain monetary elements of the law. However, the law cannot validly require payment in a manner that violates the religious law not to pay ribbit.
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