B'Yachad

For the week ending 5 January 2019 / 28 Tevet 5779

Ownership of Business Perquisites (Perks)

by Rabbi Ari Wasserman
Library Kaddish

QUESTION

I work in the nursing home industry. A vendor — a large publicly traded company, looking to do business with the corporation which employs me — sent its representatives to our offices, and I spent some time with them. But, at the end of the day we decided not to pursue the relationship.

Several days later I received an email from the vendor, offering a $15 Amazon gift card if I completed a short survey. I did so — it took me about a minute — and the gift card was sent to me.

Is this gift card company property or mine?

I asked this question of a colleague, who said that a $15 gift card was inconsequential to the company and that everybody keeps such small perks. However, the employee manual states: “On occasion, an employee may receive a gift from a vendor as a solicitation for business or as a gesture of appreciation for an existing business relationship. Employees should notify their manager of any gift received and give the manager the opportunity to inspect the gift. The manager will determine if the employee is able to accept the gift or if it should be equitably distributed within the department or throughout the company.”

So am I am foolish to be asking this question?

HALACHIC BACKGROUND

No, you are not. Indeed, your question is very similar to who owns the frequent-flyer points when you fly on company business, and actually concerns quite a few professionals out there.

In deciding such questions, halacha considers “national custom” (minhag hamedina). But since in a large country like the United States there is no uniform “national custom” that applies to all types of business, the deciding factor would be “industry custom” or industry standard. For a certain practice to be considered the industry standard it must be very clear and well established. When it is, it has precedence.

The Code of Jewish Law, the Shulchan Aruch, states that an employer is obligated to provide terms consistent with national custom/industry standard. For example, if there was no specific prior agreement between the employer and employee for the employee to work unusual hours, the employer cannot compel his worker to do so if that is not the industry practice, even if he is willing to pay for the extra time. As well, if it is the custom to provide food or refreshments to his employees, it is the employer’s duty to comply. (In Talmudic times, this meant providing dried figs or dates. In our times, it generally means providing coffee, tea and the like.)

The Aruch HaShulchan adds that if there is no prior agreement between the employee and employer and also no established practice, the employer has no obligation to provide any benefits or perks beyond basic salary. Also, it is up to the employee to prove that the employer owes him something more than his wage. In other words, in the absence of an agreement between the parties, or unless the industry standard dictates otherwise, the employer does not owe the employee any extras.

RESPONSE

Based on the above, it is clear that the relationship between the employee and employer is defined by:

1. an agreement between them

2. in the absence of an agreement, the industry is not entitled to any extras

3. in the absence of either of the above, the employee is not entitled to any extras.

In your situation, there actually is an agreement between you and your employer in the form of the employee manual, so we don’t need to analyze the industry standard. The manual clearly states: “Employees should notify their manager of any gift received and give the manager the opportunity to inspect the gift.”

Accordingly, you should discuss the $15 gift card with your employer and let him decide if he wants it for the company (per the manual) or if you can keep it. You do not need to speak with the owner of the company. You can speak with whoever is authorized to deal with these issues, probably your immediate superior.

It is worth mentioning that keeping the gift card because “everyone does it” does not make it right, and you are to be congratulated for asking the question!

POSTSCRIPT

My brother-in-law heard the following story at a weekly halacha class in Chicago:

After an Orthodox Jew attended a number of shiurim on the topic of workplace theft, he asked his boss how he felt about personal use of office supplies like paper clips, pens and paper: What bothered him, and what did not? At first the boss thought it was a joke. Once he realized that the employee was serious, they sat down together and had a very meaningful discussion, with the boss gaining new respect for his employee.

It may very well be that your boss will act like the boss in this story, but please know that, regardless of how he responds, you will be creating a tremendous kiddush Hashem. Indeed, you already have by asking the question.

§L’iluy nishmas Yehudah ben Shmuel HaKohen Breslauer

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