Mr. Morgen worked in the city and traveled over an hour by public transportation each way.
He davened Shacharis at 7:00, and usually headed straight to work from shul, so that he got there on time, by 9:00. Sometimes, though, he would stop off at his house before going to work, or just miss his regular train, especially on Mondays and Thursdays when there was leining, and would arrive at about 9:30.
One Monday morning, Mr. Morgen arrived at work and tried signing in, but the time clock didn’t register his entry. “What’s going on?” he asked a colleague who had arrived before him.
“The time clock is malfunctioning,” replied his colleague. “It may take a few days till they fix it. The boss said to keep a record by hand, and submit the hours at the end of the month.”
Mr. Morgen went to his desk, and jotted down his entry time on a paper. Before leaving work in the afternoon, he jotted down the exit time.
The following day, the clock was working again, and Mr. Morgen was able to sign in normally.
Toward the end of the month, Mr. Morgen looked on his desk for the paper on which he had recorded his hours, but couldn’t find it. He tried reconstructing based on his email message history, but it didn’t help.
“I seems that I accidentally threw out the paper with my hours,” Mr. Morgen said to his colleague.
“Put down when you usually come,” suggested the colleague. “That’s the most likely time.”
“I’m not sure I can do that,” said Mr. Morgen. “I came at 9:30 a few times during the month, and I don’t remember now whether that day was one of them.”
Mr. Morgen called Rabbi Dayan and asked:
“Can I submit the hours based on my usual schedule?”
“The Gemara (B.K. 46a; B.B. 92a) presents a fundamental dispute whether to follow the majority likelihood in monetary issues,” replied Rabbi Dayan. “The case involves a person who bought an ox that turned out to be violent, whether it is considered a mekach ta’us – mistaken sale.
“Rav maintains that the sale is a mekach ta’us, since the majority of people buy oxen for work, so that the ox needs to be domesticated and a violent one is unusable.
“Shmuel the Amora, however, maintains that we follow the majority in issues of isser v’heter, but not in monetary issues. There we follow the principle of hamotzi meichaveiro alav hare’ayah – the burden of proof is on the plaintiff. Since some people buy oxen for meat, if the seller now holds the money, he can claim that he sold the ox for slaughter and its temperament is irrelevant. The customer has to prove that his initial intention was for work, not meat.
“The halacha is like Shmuel, that we do not follow the majority, but rather follow monetary possession. (Hence, there is halachic basis for the old adage, ‘Possession is nine-tenths of the law!’) (C.M. 232:23).
“Similarly, the Gemara (B.M. 76a) writes that if work cannot be evaluated now, e.g., a worker dug a ditch that was subsequently flooded, he cannot claim pay for higher-quality work” (C.M. 332:1).
“The purpose of a time clock is to ensure that the employee is paid for the hours that he worked. When the employee records his hours by hand, he must do so responsibly.
“Since the employee records his hours to collect payment from the employer, the burden of proof is on him. He cannot follow the majority and presume that he arrived at the ‘usual’ time, if he sometimes arrives late and is unsure whether he did so on that day. However, if he has no reason to assume a change in his schedule, he can put down the usual time.
“Thus,” concluded Rabbi Dayan, “you cannot enter hours that you are unsure of.”
Verdict: An employee cannot follow the majority and presume his usual schedule to claim pay for hours that he is unsure of, if he sometimes came late during the month.
