Is it permitted for a Jewish employer to make a holiday party for his gentile employees and serve non-kosher food, either because the party is in a remote location where kosher food is not a practical option, or, the kosher options are significantly more expensive.
There are two categories of non-kosher food with regard to our discussion.
On certain non-kosher items, aside from the prohibition of eating the food, there exists an additional prohibition for a Jewish person to derive any benefit from them (known as an issurei Hannah). Most practically, this would apply to Chameitz on Pesach, and to baser vachalev (the prohibition of cooking milk and meat together).
With regard to basser vachalev, it is important to note that the prohibition to derive hannah only applies to item that are Biblically prohibited. This would require that the milk and meat were actually cooked together, and not just combined afterwards. Additionally, only meat and milk that is from a kosher animal would be subject to the issur hanaah. However, meat that comes from a non-kosher animal, such as pork, would not be subject to the issur hanaah. Furthermore, the prohibition to derive haanah applies only to meat. Chicken, although there is a rabbinical prohibition to eat it, it is permitted to derive benefit from it.
Regarding food items with an issur hanaah, it forbidden for a jewish person to purchase the food and serve them to his Gentile employees. This would apply whether the employer is contractually obligated to provide food to his employee, or whether he is giving it as an extra benefit.
On a practical level, most non-kosher food will not fall into the category of issurai hanaah, and this can generally be avoided. However, there is another prohibition that will commonly exist with many non-kosher food items. This is known as the “issur mischar” or the prohibition of doing business with non-kosher food items. According to many Poskim, this is a biblical prohibition. Other poskim maintain it is only rabbinically forbidden due to the concern that one may come to eat them. It is important to note that this prohibition applies only to food that is biblically forbidden, such as non-kosher animals and neveilos vatreifos. Regarding food only rabbinically forbidden, such is bishul akum, the issur mischar would not apply.
The simple application of this prohibition would apply to one who chooses to buy and sell such items for a profit as he is conducting business with issuri mischar. There is a debate in the poskim whether one can serve such items to his employees to whom he is required to provide food to. The R’MA writes that using such items to provide meals would be considered as doing business with these items. The T’az explains that since non-kosher meals are cheaper than kosher meals, it is considered as if the Jewish employer is profiting from the non-kosher meals in that he is fulfilling his obligation with this cheaper option. The S’hach disagrees, and maintains that since he is simply using these items to pay his obligation to his employees it is not considered as “doing business” with non-kosher items.
However, it is clear from the S’hach, that he only permits providing non-kosher food to employees that he is obligated to provide food for. But if the employer wishes to provide food as an extra benefit to his employees this would be forbidden. As since the employer is providing the food so that he can benefit with a higher quality of work, this would be considered as “doing business” with non-kosher food and would be forbidden.
Accordingly, it would seemingly be forbidden for an employer to purchase any non-kosher food that is forbidden biblically and serve it at a party. Since he is providing the party as an extra form of benefit to his employees, it would be forbidden according to all opinions.
Perhaps there is room to suggest the following solution. The Gemara when discussing an employer providing issurei haanah to his employees writes, that it is permitted for an employer to tell his employees to purchase these items from a storeowner with the arrangement that the employer will reimburse the storeowner. Since the employer is not purchasing the food, rather he is simply paying the bill of his employee, it is not considered as if the employer is deriving benefit from the issurei haanah. Furthermore, it is clear that the employer himself may approach the storeowner directly and instruct him to provide the food to his employees (the one exception may be Chamatz on Pesach where there are opinions that forbid this). Only if the employer advances the funds to the storeowner would it be forbidden. Only then, it would be considered as if the employer is purchasing the food and serving it to his employees. Accordingly, as long as the employer is not pre-paying for the food items, but rather, after the event he pays the bill, since he never acquired the food it would seemingly be permitted.
However, it is possible that this heter will not apply in our scenario. The premise for this heter is that it is not considered as if the employer is “doing business” with the issurei mischar. Rather, the benefit he is providing to his employees is that he is paying their bill that they would have accrued. Accordingly, this heter would be more appropriate where the employee is ordering food directly from a store owner. Although there is a pre-arranged agreement for the employer to pay his bill, and the employer informed the storeowner to do so, it can still be considered that the storeowner is providing the food to the employee and is simply relying on the employer to reimburse him. However, if the employer is ordering the food, and the caterer is putting out the food regardless of who is there, perhaps it is considered that the caterer is providing the food to the employer who is then allowing his employees to eat it. Therefore, even if the employer did not provide the payment until after the fact, it can still be considered as if he is supplying the food to his employee. Alternatively, one can argue that as long as the payment was not provided the employer does not acquire the food and it will therefore be permitted.
Another possible suggestion is that we mentioned above that if the employer is obligated to provide the food to his employee according to many Poskim it would not be considered as if the employer is “doing business” with the item. Rather, he is simply using the non-kosher food to fulfill his obligations. Perhaps one can argue that in an industry where a holiday party is expected, to the extent that an employee would be upset if there is none, it would be considered as if the employer is simply fulfilling his employee’s expectations and not as providing an extra benefit. According to this opinion, it would be permitted even if the employer were to pay ahead of the event. However, it is important to point out that this would only circumvent the prohibition of “doing business” with non-kosher items. With regard to food such as Baaser Vachalev that are assur behaanah, it would be forbidden as all opinions agree that one cannot fulfill his obligation to his employees with issurei hannaah.
The optimal approach would be if a Gentile employee were to arrange the food portion of the event and provide the payment to the caterer. Even though the employer would then reimburse the gentile employee, since he did not purchase the food the prohibition would not apply. In many instances this is not practical, as especially if there are large costs an employee would not agree to lay out the funds. Alternatively, if the employee would be the one arranging the food and is the one legally responsible to pay the caterer (i.e. the employees name is on the contract and not the Business) it will be permitted use the company funds to make the payment as long as it is being made after the event. In this scenario, since the caterer is providing the food to the employee, although the employer is guaranteeing the employee that he will allow them to use the company funds or credit card for payment, this would be considered as if the employee is simply paying the employees obligation and not as benefitting from the non-kosher food.
Note: These suggestions are merely to raise awareness to these issues and an individual shaila should be asked if the circumstance presents itself.
Rabbi Chaim Francis learned in the Mesivta of Long beach, Yeshivas Heichal Hatorah, and Yeshivas Brisk in Eretz Yisroel. He is currently lives in Manchester, NJ, where he gives numerous Shiurim throughout the week.
Rabbi Francis learned for seven years in Kollel Choshen Mishpat under Hagaon Rav Eliyahu Levin shlit”a, learning the sugyos of chosen mishpat, even haazer, and receiving shimmush in Hilchos Ribbis.
Over the past several years, Rabbi Francis has focused on Halachos relevant to the business setting, and is currently publishing a Sefer called ‘Ribbis in the Business World.’
Very clear and concise.
Thank you Reb Chaim,
WE WANT MORE!
very well thought out and written ! thanks