A basic function of human life is that employees get paid.
But the beauty of the Torah is that even basic functions can be mitzvos. Oftentimes, multiple mitzvos.
There’s a Torah obligation on an employer to pay his employees a timely wage. This obligation is both a positive commandment and a negative commandment – and both are derived from the same verse.
The passuk in Devarim (24:15) says “beyomo titen secharo – you shall pay his wage on his day” – this is a positive commandment.
The passuk continues: “Velo savo eilav hashemesh – and the sun shall not set on him” – this is a negative commandment.
In addition to these mitzvos, the Gemara in Bava Metzia (111a) adds that a boss may also violate other negative commandments, like the prohibition against stealing.
There are many differences between a positive commandment and a negative commandment but one of the more notable differences relates to the role of beis din.
By a positive commandment, beis din will proactively do anything possible to make sure a person performs a mitzvah (see Kesubos 86a). However, if a person didn’t fulfill a positive commandment, beis din will generally not punish the person for not fulfilling a mitzvah.
For many negative commandments, though, if a perpetrator performed the prohibition intentionally and was warned by two witnesses, beis din would issue the penalty of lashes (malkos).
For withholding wages, since there’s a negative commandment attached to the prohibition, would there be a penalty of malkos?
Tosfos (Bava Metzia 62a) holds that there is lashes.
The Rambam disagrees.
The Rambam (Sechirus 11:1) says that there’s no lashes for withholding wages because the owner is obligated to pay.
What does the Rambam mean by this? Why would the fact that one has to pay be an exemption from lashes?
The Initial Approach – Lav Hanitak L’Aseh
An initial reading of the Rambam is that this is a negative commandment that has a corrective positive commandment attached to it. This is called a lav hanitak l’aseh.
The Gemara in Malkos (13b) explains that there’s no penalty of malkos for a lav hanitak l’aseh because malkos is derived from a specific negative prohibition – the prohibition against muzzling a working animal. Since a lav hanitak l’aseh isn’t similar to the prohibition against muzzling, which has no positive commandment attached to it, it therefore doesn’t bear the penalty of lashes.
The question that remains: is the positive commandment to pay wages a correction to a negative commandment not to withhold wages?
In general, a lav hanitak l’aseh means that there’s a positive commandment that’s coming to fix a previous wrongdoing.
For example, one is not allowed to steal. If one does steal, there’s a corrective positive commandment to return the stolen object.
Similarly, one is not allowed to leave over a korban past a certain amount of time. If one does, there’s a corrective positive commandment to burn the leftovers.
When it comes to withholding wages, the positive mitzvah to pay timely isn’t coming to correct a previous wrongdoing – in fact, the reverse is true. The positive commandment to pay workers precedes the negative commandment.
First, there is a commandment to pay one’s workers timely. If one doesn’t pay timely and doesn’t fulfill the positive commandment, then one ends up violating an additional negative commandment. This is called lav shekadmo aseh – a negative commandment preceded by a positive commandment. The Gemara in Makkos (14b) seems to indicate that there are lashes for a lav shekadmo aseh and that the exemption of lav hanitak l’aseh doesn’t apply.
Additionally, although there are different versions of what the Gemara’s conclusion actually is (see Meiri Makkos 15a and Tosfos Pesachim 95a), the Rambam’s own language seems to dispel the idea that withholding wages is a lav hanitak l’aseh, as his language by not paying workers differs substantially from the way he formulates other cases of lav hanitak l’aseh.
Indeed, if withholding wages is not a lav hanitak l’aseh, we return to the original question:
Why wouldn’t there be lashes according to the Rambam for withholding wages?
The Second Approach – The Approach of the Shaar Hamelech
The Shaar Hamelech (Chametz Umatzah 1:3) suggests that according to the Rambam, it’s possible that there’s a standalone exemption from lashes whenever someone has the option to pay for the transgression.
R’ Chaim Ozer Grodsinski zt”l (Achiezer 1:21:4) explains that although this is technically not a lav hanitak l’aseh, the same reasoning for exemption applies. A lav hanitak l’aseh is exempt from lashes because the transgression can be “fixed” without punishment by merely fulfilling the related positive commandment.
Similarly, by a negative transgression where the perpetrator has to pay, even if that transgression is not considered nitak l’aseh, there’s no penalty of lashes since the adverse action can be “fixed” by through payment.