The Jewish Ethicist: Kicking Back Kickbacks
When is it ethical to pay or receive kickbacks?
Q. I'm a professional photographer. Photographing kids' sports teams is good business, because parents are always eager to buy the pictures. But it's impossible to get hired for these jobs without paying kickbacks to the coach. Can I make these payments, or do I have to give up on this lucrative business? EG, USA
A. In public life, the line between legitimate and illegitimate payments is pretty clear. Any payment to influence a public official is a bribe. But in private life, it can be harder to draw the line. There is no doubt that if a photographer has an agent, the agent is entitled to payment for any business he drums up for his client. Little-league coaches probably feel that they are doing the same service and are entitled to the same recompense.
This kind of payment is not inherently wrong. The coach is hired to train the youngsters, not to investigate photographers. The problem here is that the "agent" is using false pretenses. The parents aren't told they are actually paying the coach instead of the photographer, and they assume that the coach is impartially recommending the photographer who provides the best service. Even if the kickbacks support the team, parents should be informed that the team photo is a fund-raising effort.
It's even worse to get a kickback for just doing your job. For instance, an interior decorator is being paid to find the supplier who provides the best merchandise for the best value; it's unethical for her to "double dip" and pocket the decorator's discount.
The merchant who pays kickbacks is also acting improperly. Since he is paying for the customer's business, the customer deserves a share of the payback. Giving it surreptitiously to the agent is a way of cheating the customer out of his money. This is comparable in a way to helping fence stolen goods, which Jewish tradition views as a thinly concealed partnership in crime. "One who splits with a thief hates his soul." (Proverbs 24:21.)
These payments also tempt the agent to favor inferior suppliers as long as they line his pockets, so that they induce him to violate the employer's trust. Misleading the customer this way is like "putting a stumbling block before the blind." (Leviticus 19:14.) And even if the agent convinces himself that he won't allow kickbacks to influence his judgment, the Torah tells us that a bribe "blinds even the wise, and distorts the words even of the righteous." (Exodus 23:8.)
When the prophet Elisha cured the Aramean general Naaman of his leprosy, he refused to accept any payment. But Elisha's valet, Gechazi, accepted a private gift without Elisha's knowledge and was smitten with leprosy – which Jewish tradition considers a symbol of duplicity. (Kings II chapter 5.) Any gifts or payments to purchasing agents, suppliers and the like should be made honestly and openly.
Additional sources: Midrash Rabba on Vayikra 5:1; Babylonian Talmud Arkhin 16a; Shulchan Arukh Choshen Mishpat 183:6.
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