#824: Halachic HR: Who decides the grey areas of employment?
The conditions of an employee’s salary, benefits or work requirements may become a matter of dispute when these matters were not clearly delineated in the original contract of employment. Halachah states that these issues are often settled based on minhag hamedinah (the local custom).
One aspect of minhag hamedinah includes matters of takanah (regulation) and these become standard regardless of local adherence. But certain practices are only minhag shena’aseh mei’ailav (a developed custom) that became the common procedure only by default. In these matters too, halachah follows the universal minhag. Therefore, in areas of disagreement, it is considered as if the rules of minhag hamedinah (both those that result from legislation and those based on universal practice) were implied in the original terms of employment.
However, sometimes there arises an issue that is practiced only in the majority of cases. It is conventionally held as common practice—but not across the board. Should it still be the standard for terms of employment?
It may be argued that we should take into account the principle in halachah that states, “Ein holchin b’mamon achar harov” (we do not follow the majority in money matters). Accordingly, one of the parties might wish to argue, “I belong to the minority that follows different standards.” Many poskim nevertheless maintain that in the case of a contract established between parties for the future, we include matters that are practiced by the majority. These practices—even if they are not observed by every business in the vicinity—are also considered to have been determined the time of the contract.