The Short Vort
Good Morning!
Today is Wednesday the 16th of Iyar 5781 and April 28, 2021
The Tipping Point and The Point of Tipping
As Lag B'Omer is coming tomorrow night, I am reminded of a Chasunah I attended several years ago on Lag B'Omer in New Haven, Connecticut.
I was not the Mesader Kiddushin, nor was I there in any official capacity other than a guest.
I was looking at the sesame chicken and was struggling with myself if I should eat some or not.
The Chalishkes (Jewish Stuffed Cabbage) were less tempting, and the kishka didn't even make it into the running. There was enough oil in the kishka tray to power my car from Passaic to New Haven.
So here I am arguing with myself if it's worth it to gobble down some sesame chicken when all of a sudden there is a large klop (bang) on the table.
I look in the direction of the klop, and I see the Rosh Yeshiva, who is being honored with Siddur Kiddushin (officiating under the Chupah), stand up, and yell, "Pasul! (disqualified) You are Pasul L'Eidus!" (You are disqualified- because of your non-halachic behavior -from being a kosher witness at the wedding.)
I was stunned; I had never in my life seen an ostensibly observant Jew disqualified as a witness at a wedding.
I quickly forgot about the sesame chicken and made my way to the front table.
The enticement of a potential Short Vort outweighed any former cravings I may have had for little pieces of chicken covered with tiny sesame seeds, swimming in a high caloric sauce.
I made a beeline to the Rosh Yeshiva and asked the all-important question, "Vos iz ge'Shen?" (What happened?).
As the Chassan's father scampered around looking for a pinch-hitter for the now disqualified eid (witness), I sat close to the Rosh Yeshiva to get the inside scoop of this halachik oddity.
The Rosh Yeshiva explained, "We were about to sign the Kesuba, and suddenly a man whispers in my ear that the Chassan's father's eid is pasul because he is a ganav (a crook)."
"I looked at this man and said, "What do you mean he is a crook? How do you know?" The man said that he is a waiter in a large kosher restaurant and the potential witness eats there regularly." "So what does that have to do with stealing?"
"Rabbi, this man eats at the restaurant three times a week, and he never leaves a tip. Not for me and not for any of the waiters! Once, we even asked him why he doesn't leave a tip, and he said, "I give you guys enough business; I don't have to tip you as well!"
The man continued, "Doesn't the Rosh Yeshiva realize that we rely on those tips to live on? We are not even paid minimum wage. We rely on the tips as part of our salary!"
The Rosh Yeshiva continued, "I then turned to the potential eid and asked him if what this waiter says is true. And without hesitation, he said, "Of course it's true! I never tip because I give them so much business!" It was then I stood up and announced that this man is disqualified, Pasul to be an eid!"
At that point, a stand-in witness appeared, and being that I had my story, I moved back to my former seat and resumed my thoughts of sesame chicken. However, in my mind, I wondered, "Is that the halacha? If you don't tip, you are considered a crook?"
I knew it would be a late night as I had some research to do.
Part One- Do Tip or Not to Tip? That is the question
A very unscientific survey of other guests at the wedding yielded mixed results. Some people took time off from their first course -meat wrapped in flaky pastry dough, smothered in mushroom sauce- to tell me, "Tipping? Of course, you have to tip. It's part of the waiter's salary!"
However, another man –who was consuming spoonfuls of the MSG-laden chicken- noodle soup with one of the noodles hanging from his beard- insisted the following:
"Tips? They are optional. You want to give? Great. You don't want to give? Also great! It's a "reshus" (optional) and not a "chovah" (mandatory).
I was going to engage this man more in conversation. However, because I didn't have the guts to inform him that a noddle was hanging from his beard, yet the distraction of the noodle was overpowering, I thanked him and moved on.
The new couple then arrived in the hall, and the band began to play (loud).
Since we all listen to Men of the Great Assembly, namely the CDC and the CDC paskens, "Sound is measured in decibels (dB). A whisper is about 30 dB, normal conversation is about 60 dB, and a motorcycle engine running is about 95 dB. Noise above 70 dB over a prolonged period of time may start to damage your hearing. Loud noise above 120 dB can cause immediate harm to your ears".
As the music got louder, it felt as if the decibel level was approaching ten times Chai.
I decided to head for the hills and make my way back to good old Passaic.
So what's the Halacha? To tip or not?
Time to hit the books!
The Rema writes clearly in Shulchan Aruch Choshen Mishpat 264:4 (I am summarizing and paraphrasing)
'A person who performed a service usually done for pay, even though the client and the worker (e.g., the provider of the service) did not formally engage in a contractual agreement; nevertheless, the fact that this service is known to be a paid service obligates the beneficiary of the service to pay the going rate for the service performed.'
Based on the above principle, and based on the fact that in our neck of the woods, everyone knows (and if they don't know, ignorance is no excuse) that Tipping is expected and is part of the waiter's pay. It is mandatory to tip, and if you don't tip, you can be considered a ganav (crook).
Here is the law:
Tip Credits
"Employees are entitled to earn the full minimum wage per hour as set by federal or state law. Currently, the federal minimum wage is $7.25 an hour. In 2020, the minimum wage in New Jersey is $11.00 an hour. Therefore, employees in New Jersey are entitled to the higher state minimum wage.
Under federal law and in most states, employers may pay tipped employees less than the minimum wage, as long as employees earn enough in tips to make up the difference. This is called a "tip credit." The credit is the amount the employer doesn't have to pay, so the applicable minimum wage (federal or state) less the tip credit is the least the employer can pay tipped employees per hour. If an employee doesn't make enough in tips during a given workweek to earn at least the applicable minimum wage for each hour worked, the employer has to pay the difference.
New Jersey allows employers to take a tip credit of up to $7.87 an hour. Employers must pay tipped employees a cash wage of at least $3.13 an hour. If an employee doesn't earn enough in tips to bring his or her total compensation up to at least the full state minimum wage rate of $11.00 an hour, the employer must make up the difference."
We see clearly that a tip is part of the waiter's salary as if he/she doesn't make enough tips to reach minimum wage, the restaurant owner must make up the difference by law.
Therefore, our waiter friend, who informed the Rosh Yeshiva that the non-tipper was a ganav, was correct.
Tipping is not gifting. Tipping is part of the bill. If you don't tip, you are not paying your bill.
Nevertheless, there is a range of acceptable tipping.
However, a minimal tip is required.
In New Jersey: "15% is appropriate for average service; 20% if your server is above average. You should feel free to tip above 20% if you received excellent service."
We now have finished step one; let's review:
1. Even without a prior formal contractual agreement, any usually paid service performed for you (with your consent), you are mandated to pay the provider of the service.
2. Therefore, since the waiter relies on tips to even reach minimum wage, you enter into an unspoken yet, halachiklly binding agreement to pay the waiter for his/her service anytime you enter a restaurant.
Part Two- Do You Become Disqualified as a Witness in this situation?
We now understand why Mr. Potential Witness (to be known going forward as PW) is considered a crook.
However, based on whom do we know that he is a crook?
We know it from two sources.
1. The waiter
2. PW's admission
However, we now have a problem. According to halacha, you need two witnesses to disqualify a person from being a witness.
Here we have two people. However, both of them are disqualified from disqualifying PW.
The waiter is disqualified from being a witness as he is the plaintiff.
The plaintiff can't be a witness against the accused.
PW himself is also disqualified because you cannot self-incriminate yourself. The Shulchan Aruch states clearly in Choshen Mishpat 34:25 that a person may not incriminate themselves, and therefore PW cannot disqualify himself from being a witness.
If so, there are no kosher witnesses present. If so, why can't PW be a witness at the wedding?
Answer:
Although it is true that by your admission, you cannot place yourself in the category of a disqualified witness; nevertheless, the Shulchan Aruch (Ibid.:25) states that although he is technically not disqualified, regardless, L'chatchila his admission of the crime precludes his being a witness to the upcoming event.
Therefore, the Rosh Yeshiva was correct in disqualifying PW from being a witness.
PW admits he is a Ganav.
And although we don't have two kosher witnesses to back this up, nevertheless, since PW admitted he is ganav before the onset of the wedding, L'Chatchila, we do not allow him to be an eid at the wedding.
Hence, our Rosh Yeshiva was spot on!
Poor PW- if only he would have tipped….
Lessons to be Gleaned
1. Make sure you tip
2. You never know who will show up where- even your waiter might come back to haunt you
3. Never eat noodle soup if you have a beard.
“If Not Now, Then When?”- Hillel
Ron Yitzchok Eisenman
Rabbi
Congregation Ahavas Israel
Passaic, NJ
