Monday, October 11, 2004

Lo Talin cont...

This post on Lo Talin triggered a lot of email. Here are some of them.

MoC emails:
An interesting question: who is the ba'al habayis, the band leader or the ba'al simcha? If it's the ba'al simcha, I think he's patur because the band leader is his agent and agency suspends the requirement of immediate payment.
Also lo tallin applies only to the immediate day of work. As long as there is an understanding by the band members that it is customary NOT to get paid the night of the gig, the issur of lo tallin is suspended and it just becomes like any other debt obligation of the band leader.
Obviously you are right that it is inappropriate to string the band members along but I don't think it's lo tallin if the customary practice is to not get paid the night of the gig. On the other hand there is also a mitzvas aseh to pay someone on the day of the work. Band leaders are foregoing that mitzvah.
Treppenwitz's David Bogner writes:
I have to say a few words on this subject because it is one that heavily influenced my decision to play for one band (most of you know which one I'm talking about), and to stop playing for several others altogether (ditto).
Yes, you are correct that all of the main club date offices insist on paying the musicians as freelancers rather than regular employees. This should make them responsible to pay the musicians as 'day laborers' according to the halacha you quoted.
However, there are a few factors that come into play that you did not mention:
1. The club date offices are acting as contractors on behalf of a client who is not obligated to pay until after the end of the affair. In the halacha you quoted, it seems to be assumed that the person doing the hiring is the end user (the owner of the field... the proprietor of the factory, etc.). If I am incorrect and it is not implicitly assumed, then there is at least a lack of ample discussion of how subcontractors should be treated under the applicable halacha.
2. Each affair is booked for a set minimum number of hours, but it can, and often does, go overtime. This makes having checks prepared beforehand problematic. On the few occasions that the gig went 'undertime', the band for which I did most of my work collected the original agreed upon fee and paid me as though we had done the full time.
3. Many musicians have 'special deals' with the offices resulting in sophisticated individual calculations for many of the paychecks that need to be cut. This also makes having pre-made checks impractical. It is worth noting that these 'special deals' also call into question the status of many of the musicians as 'day laborers' (I'm talking about their halachic status, not their status under U.S. Labor law).
4. Many times the bandleader on the bandstand is not a member of management and is not privy to what each person is supposed to be paid (see 'special deals', above). This makes it impractical to have the leader pay the musicians.
5. There are often tips (yes Virgina, there are actually some honest offices that pass tips along to the musicians!). If the musicians pay was computed before the affair, it would create a very confusing situation for delivering this extra compensation.
6. Honesty. As I mentioned before, I stopped working for several club date offices (one in particular) that abused the process in order to gain additional 'float' by holding the musicians pay for weeks or even months after the client has paid for an affair. I cannot place enough emphasis upon this point. If a musician is working for a dishonest / unethical office, no amount of quoted halacha will fix the problem... and if they are working for an honest office, no amount of quoted halacha should be necessary.
7. In 17 years, the office for which I did most of my work miscalculated my pay two or three times; each times in my favor! I never missed a tip... and I know for a fact that they paid me on a few occasions even after being strung along (or even 'stiffed') by clients. When affairs were cancelled, they often placed musicians from the cancelled bands as 'freebees' on other affairs the same night in order to a) enhance the other affairs, and b) keep the musicians working. Even though the office benefited by being seen as giving a 'gift' to the clients on the other affairs... the gift was given entirely at their own expense!
8. The halacha as you quoted it should protect the interest of the workers. But the honesty and ethical behavior of the offices (which would indicate their acceptance of halacha in the first place) is a necessary ingredient for a positive result.
So I guess my message to musicians concerned with this aspect of Jewish law: Quoting halacha to a person who does not follow it may make you feel better, but it won't help in 'Olam haZeh' (this world). Part of having free will is being selective about with whom you do business... and in whose fields you toil!
I’m reasonably certain that in most cases it is the band owner that is considered to be the ba’al habayis, as it were, and not the ba’al simcha. My understanding is that generally freelance musicians view themselves as working for the band and not the client. In most cases, the musicians don’t even have an idea of whom -- other than the band owner — they’d collect payment from... The chosson?... His father?... The kallah’s family?... Somebody’s uncle???

In Hilchos Schirus 11:4, the Rambam addresses the case of shlichus and writes: “omar lahem scharchem al ba’al habayis, shneyhem einam ovrin mishum bal talin, zeh l’fi shelo sachran, v’zeh l’fi shein peulasan etzlo. V’im lo amar lahem scharchem al ba’al habayis, hashliach over” IOW, it seems clear that Rambam holds that unless the contractor explicitly tells them that the ba’al habayis will pay them, the agent is obligated to pay them on that day and violates the prohibition if he doesn’t.

The Shulchan Aruch in Choshen Mishpat 339:7 is even clearer: “v’im lo amar lahem scherchem al ba’al habayis, afilu lo amar lahem scharchem alai ela sachram stam, hu chayav b’scharam, l’fichach hu over mishum bal talin. The Rema adds that if the workers know that “ain hamelacha shelo”, then the shliach isn’t over b’stam. This may apply in the case of a larger office where the contractor is not an owner, but it would rarely apply in the case of smaller bands where the contractor is the band owner.

Interestingly, the Pischei Teshuvah quotes the Ma’amar Kaddishin who says that the reason the mechaber writes “Haomer l’shlucho” instead of “omer adam l’shlucho” is to teach that even in a case of agency, although b’dieved the ba’al habayis isn’t over, l’chatchila he’s over on ba’al t’shahe.

My impression is that if a client doesn’t pay, the musicians have no legal recourse to sue directly. Rather, the band has to sue the client, and the musician’s claim would be against the band.

This is the perspective I’ve always taken; that the bandleader is NOT a shaliach for the ba’al simcha and that Lo Talin generally does apply. I always pay the musicians at the end of the gig. I’ve only once forgotten to bring my checkbook on a gig and the check went out first thing the next morning. I consider myself obligated to my musicians even when the client has stiffed me. (Thankfully this doesn’t happen too often, although, I’ve had to lay out money for months on several occasions when clients were late with payment.) I don’t believe that it is customary not to get paid the night of the gig, except in the case of larger offices where it MAY be so depending on their agreement with a given musician and/or contingent on whether or not the client pays in cash. (A whole ‘nother discussion, incidentally.)

In the case of a large office, where the contractor is not one of the owners, the p’tur of agency may apply – although it is certainly not in the spirit of the halacha as I’ve indicated above. The issues of potential overtime fees as well as the special arrangements these offices have with some musicians are additional reasons why in the case of a larger office it is logistically difficult to pay at the end of the gig and this may be implicit in the arrangement they have with their musicians. If so, then there is no violation of lo talin, although I believe there still would be a bittul aseh.

I’m not sure why the amount a musician is supposed to get paid would affect his status as a day laborer, though. My impression has been that it’s based on the length of time a worker is hired for.

For the sake of completeness, I should point out that the employee has to ask for payment in order for the obligation to kick in. Also, if the employee is aware that the employer only has money on certain days, then the obligation doesn’t kick in either. (This point may also be relevant to the following email from Uncertain Trumpet.) For a better understanding of the relevant halachos, I strongly recommend reading the entire Siman in Shulchan Aruch and the entire perek in Rambam’s Hilchos S’chirus.

I agree with David that quoting halacha to people who have clearly demonstrated a lack of concern with following it is usually pointless, but I do feel that there are some who act inappropriately out of ignorance. These people, who simply haven’t thought about what they’re doing and most likely are merely copying what they’ve seen others do, may change their behavior when made aware of these issues.

Incidentally, the band David refers to, Neshoma Orchestra, has a well-deserved reputation for always trying to take care of their musicians and do right by them. This should be standard operating procedure in any Jewish industry.

I couldn’t agree more with David’s final point. If more musicians would refuse to work for unethical contractors the industry would be in a much better state. When I started out in the biz and was looking for work, I didn’t work hard to get into the big band that is the logical first stop for musicians in our end of the business because most of the musicians I respected wouldn’t work for them. I have done a few gigs for them over the years, but only on last minute notice — I won’t hold a date for them — and I charge them a premium. And, there are many bands/performers I turn down when they call me because they’re not ethical or honest.

Finally, Uncertain Trumpet emails:
One of the problems compounding this issue is that bands are waiting longer and longer to get paid by some clients. Unfortunately, because of the bottom feeding tendencies of our business, even larger bands work on much narrower margins than they used to.
This has two direct results. One is that they may not be able to afford the staffing required to process payment properly. Another is that the money is simply not available to lay out for what could be dozens of musicians on a given date. Having said that, bands could be better about paying on time. So could Yeshivas. And Jobbers. And wholesalers. And retailers. And clients.
As I noted above, this may be a valid reason, but the employee needs to be made aware of the situation going in.

In summation, I believe that Lo Talin applies much of the time, especially in the case of smaller bands, and in situations where freelance musicians are used by larger bands. There may be some exceptions due to the "agency loophole", but even in those cases, it's only b'dieved, there is most likely a bittul aseh, and the spirit of the halacha is violated.