- Question: [Thursday 7th Kisleiv 5782]
The maintenance of our website is performed by a non-Jewish web technician. I would like to know if it’s permitted for him to do work on Shabbos on my website or if I have to tell him not to do any work on my website on Shabbos. If not, then is there any allowance in the case of emergency to have him work on the website on Shabbos such as if for some reason the website is down and may take many hours to fix which will impact our business on Saturday night-Sunday if it is still down?
It is forbidden in all cases for you to ask the gentile to perform work on the website on Shabbos. Furthermore, if you pay him per hour [i.e. Sechir Yom], then you specifically have to tell him not to do work on Shabbos. However, if you pay him per job [i.e. Kablanus], or give him a set payment per month for the general maintenance irrelevant of number of hours of actual work, then while you still can’t ask him to do work for you on Shabbos and can’t make him feel expected to do work for you on Shabbos, nonetheless, you don’t have to explicitly tell him that he may not do work for you on Shabbos, and if he chooses to do so on his own, then that is his prerogative, and you may benefit from the work and do not have to protest. Now, if he is expected to right away fix any issue that comes up, then you must tell him that on Friday night-Saturday until dark he is off the hook and is not obliged to fix anything, in which case he may still choose to do so if he wishes, so long as you don’t pay him per hour as we explained. Based on all this, it is understood that you may not ask a Gentile even before Shabbos to fix issues that come up on your website on Shabbos, when it is Shabbos for you, even if he is paid per job and hence in your above case the Gentile cannot be expected or asked to fix the website on Shabbos so it will be ready for commerce on Saturday night-Sunday, although if he is an independent contractor and on Shabbos sees the issue on the site and on his own decides to fix it right away even though he is not obligated to under his job agreement, then that is his prerogative.
It is forbidden for a Jew to have a Gentile do Shabbos prohibited work on his behalf on Shabbos due to the general prohibition of Amira Lenachri. Now, this prohibition only applies in cases that the Gentile is acting as an emissary of the Jew, and is considered an employee of the Jew, in which case we rule that he may never do any work on Shabbos on the behalf of his Jewish employer, even if his Jewish employer did not ask him to do so on Shabbos. Therefore, if the Jewish employer discovers that his Gentile employee is doing work on Shabbos on his behalf, he must protest him, and to begin with should inform the Gentile employee that he should not do any work on Shabbos. This type of employee is known as a Sechir Yom. However, in those cases that the Gentile is acting as an independent contractor who does work on behalf of the Jew, and thus we view the Gentile as the owner of the service and the Jew as a client [as opposed to an employee employer relationship], then so long as the Jew does not instruct him or ask him to do the work for him on Shabbos, and does not make it expected for the work to be done on Shabbos, then he is not considered an emissary of the Jew, and he may choose to do his work on Shabbos on behalf of the Jew, as Gentiles are not commanded in keeping Shabbos, and this Gentile is not doing this work as an emissary of the Jew, but rather as part of his business. This type of employee is known as a Kablan. Now, how do we determine if a worker is defined as an employee versus an independent contractor? Practically, we rule that a Gentile who is paid per day or per hour, is considered an employee and therefore it is forbidden for them to do any work on Shabbos on behalf of the Jew. However, if he is paid a set amount of money per job, irrelevant of how many hours it takes him to do it, then he is considered an independent contractor. Accordingly, regarding our above question if a Gentile website technician may do maintenance work on Shabbos onto the website, it depends on his conditions of employment and the payment agreement. If he is paid per hour, and sends his hours to the Jewish employee to receive payment, then he must be told that he cannot do any work on the website on Shabbos. If, however, he receives a set monthly sum, or gives a set fee per job, to be in charge of any and all problems that occur on the site irrelevant of how many hours he invests, then he is viewed as an independent contractor, and may choose to do the work on Shabbos if he wishes. However, even in this case, it remains forbidden for the Jew to obligate or instruct or ask the Gentile to do work on Shabbos on his behalf. Accordingly, if one hires the Gentile technician on condition that he will fix any and all problems on the website as soon as he is notified of them, such as by a default email that is sent to technicians by the web service, then he must explicitly tell the Gentile when he hires him, that Shabbos is an exception and that he is not obligated to do any work on Shabbos and may do so afterwards if he chooses. In such a case, it is permitted for the Gentile to choose to do the work on Shabbos if he wishes being that the Jew did not obligate him to do so.
Sources: See Admur 243:1 regarding the general prohibition of Amira Lenachri and that it is due to Shlichus; See regarding the prohibition of having a gentile employee work on Shabbos as a Sechir Yom [i.e. per hour, day]: Admur 243:4; 244:1; 248:; See regarding the obligation to protest the gentile employee if he does work for you on Shabbos: Admur 243:3-4; 244:1 See regarding the allowance for a gentile to do work for you on Shabbos as a Kablan [i.e. per job, or monthly/yearly salary for a responsibility irrelevant of hours]: Admur 244:1 and 9-10; 243:6; Michaber 244:1; See regarding the prohibition to ever instruct the gentile to do the work on Shabbos, or give him a due date for the work which will force him to do it on Shabbos: Admur 244:1 and 9-10; 247:1; 252:4; Michaber 247:1; M”A 244:1; M”B 244:2 and 24 in name of Taz; Kaf Hachaim 244:1; Piskeiy Teshuvos 244:4; See regarding the definition of a Sechir Yom versus Kablanus: Admur and Michaber 244:1; Michaber and Rama 244:5; Admur 244:10-11; Chasam Sofer 60; Harei Bashamayim Tinyana 24; Imrei Yosher 1:22; Cheshev Haeifod 2:109; Piskeiy Teshuvos 244:4 footnote 24
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