1. EMPLOYMENT
Question 179 Employment for a Partner
Will it be lawful for a partner in a partnership-based Company to also be an employee?
Fatwa
The jurists from the Shafi’i and Maliki schools, as well as Zufar from the Hanafi school, took the position that it is not lawful to favor one partner over the other(s) regardless of whether this is done by means of granting that partner a greater percentage (of the partnership’s earnings) or by means of a regular salary.
The jurists from the Hanafi school, other than Zufar, and the jurists of the Hanbali school, however, held that it is lawful to favor a partner working for a Company by means of granting the working partner an agreed upon percentage. We know of no jurist, however, who considered a regulär salary for a working partner to be lawful.
All the jurists are in agreement that it is not lawful to grant such a percentage or a salary to an outsider in a partnership-based Company.
My own opinion is that it is lawful to give a working partner either a salary or an agreed percentage because companies today represent legal persons or entities, and working partners (in such companies) have two characteristics:
1. That s/he is a partner and is thus to bear either profits or losses, and
2. That s/he is an employee and entitled to remuneration as determined by those who represent the Company (i.e., management), and especially if the salary is set (or approved) in a general shareholders meeting.
In our opinion, this viewpoint is supported by the fact that all of the jurists held it lawful to pay a worker, other than a partner, a fee in exchange for his/her labor. Moreover, a working partner in a Company is sure to be more interested in the success o f t h e business than an outsider. It is therefore illogical to pay an outsider what may not be paid to a partner. The argument of the jurists who held it unlawful to pay a partner stems from their equating a partner to a mudarib, when a mudarib may not take anything more than the share that is agreed upon in the mudarabah contract.
This is not the case in modern corporations. The classical jurists did not consider a Company to be a legal person because they never imagined that the numbers of partners in a Single Company could reach such staggering numbers as the number of shareholders in today’s corporations.
The concept of a Company as a legal person is one that [though never articulated] is supported in principle by the Sharp ah of Islam. For example, the Sharp ah recognizes that a government can be a creditor and a debtor. Likewise, a mosque may be made the beneficiary of a trust (waqf). Both of these instances may be considered de facto recognition of the concept of a legal person.
Question 180 Employing and Insuring Non-Muslims
Is it lawful to employ experts and advisors who are not Muslims in a Company in which the Finance House is a majority shareowner? It should be noted that the Company is clearly in need of their services. These experts, however, stipulate that the Company they work for must pay for their life insurance. Is it lawful to include a clause in their contracts stating that the Company will pay life insurance benefits for non-Muslims?
Fatwa
In the event of necessity, it is lawful to employ non-Muslims in the Company, but on the condition that s/he be reliable, trustworthy, experienced at the position, and qualified.
It is not lawful to include a clause in the contract stating that life insurance will be paid by the Company.
It is possible to agree on a salary from which such payments may be deducted, though without expressly stating this in the contract.
Question 181 Christmas Holidays
Is it lawful to grant a Christian employee working in an Islamic Organization a holiday on the occasion of Christmas? What is the Sharp ah ruling in this regard?
Fatwa
The Board is of the opinion that custom may be followed in this matter.
Question 182 Employment in Companies Dealing in Riba
What is the Sharp ah ruling in regard to employment as a clerk, or an accountant, or a financial auditor in a trading Company that avails itself of interest-based facilities offered by conventional banks, including the deduction of interest when opening letters of credit? Will such employees be included in the meaning of the hadith in which the Prophet of Allah, upon him be peace, is reported to have cursed those who consume riba, as well as those who bring it about, who record it, and who witness it, saying that they are all the same?
Fatwa
It is lawful for someone to work in trading companies that combine their legitimate business with riba-based dealings, but only if they have nothing to do with recording such transactions, or dealing with the legal instruments or checks from riba-based transactions.
Question 183 Facilitating Transfer of Residence Permits
Please explain the Shari’ah perspective on the possibility of not transferring a residence permit for an employee who has resigned or whose services have been terminated, when the employee finds a better position. It should be noted that oftentimes large sums of money are spent on improving the qualifications of employees, or on specialized training.
Fatwa
It is the right of the Finance House not to transfer the residence permit of its employee to another sponsor because the arrangements for the permit were made initially in the understanding that the employee was to work for the Finance House. In addition, money was spent on training the employee and improving his/her professional qualifications on the understanding that the Finance House might derive benefit from the employee’s continued service. The Finance House also has the right, if the employee insists on the transfer of his/her residence permit, to seek its cancellation. The Finance House likewise has the right in certain circumstances to respond positively to the request for the transfer of the residence permit.
Question 184 Non-Muslim Trainers
Two groups were formed to develop branch Operations and marketing. The groups consist of twenty employees who have been reassigned to this task full- time for a period of ten months to a year. The groups will work together with three American experts, two men and one woman. Is it lawful to have young Muslims sit with a woman in western clothing, without a head cover, and who is not a Muslim? When the men are in the Situation of having to seek her help and advice on how to conduct their business? And when will this Situation will remain for an extended period of time?
Fatwa
The administrative measures taken by the Finance House include its not seeking help from Non-Muslims, either men or women, for the training of its employees. If such a Situation has actually come about, the Finance House must ensure that it not be repeated. Assistance from other than Muslims should not be sought except in extremely technical matters of the sort that may not otherwise be addressed. One of the policies of the Finance House is that assistance should be sought from experienced Muslims of reliable faith.
Question 185 Men Training Women
What is the ruling in regard to the training of female employees by men, when no women are available as trainers?
Fatwa
There is no impediment to such training if all agree to behave in accordance with the etiquette prescribed by the Shari’ah, especially with regard to dress and conversation. There should be no instances of two people of the opposite sex being alone because this is clearly prohibited, i.e., a man and a woman being in a place where the intrusion of another is impossible. Such a Situation would never arise, however, in a public building.
Question 186 Working Düring the Iddah Period
What is the Shariah ruling in regard to a woman’s working during the ‘iddah?
Fatwa
There are two kinds of iddah; the ‘iddah of a widow, and the iddah of a divorcee. Then there are two kinds of iddah for a divorcee; the iddah of a divorcee whose divorce is revocable, and the iddah of a divorcee whose divorce is irrevocable.
The ‘iddah for a widow lasts four months and ten days during which period she should remain at home. If she has a job, she may go to it for as long as the job requires; but she should not exceed that amount of time. Her nights should be spent in the home prepared for her. This is in the event that she is not pregnant. If she is, the period of her ‘iddah will extend to the time she gives birth.
The divorcee whose divorce is revocable will continue to be considered a wife. As such, she retains the right to beautify herself and appear before her husband; and she will require his permission to leave the home.
The divorcee whose divorce is irrevocable may work during her ‘iddah because her connection to her husband has been severed. All the jurists are agreed that she will not be required to refrain from beautifying herself (by means of makeup, jewelry, and clothing).
By Yusuf Talal DeLorenzo.
Comments
John Doe
23/3/2019Lorem ipsum dolor sit amet, consectetur adipisicing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam, quis nostrud exercitation ullamco laboris nisi ut aliquip ex ea commodo consequat.
John Doe
23/3/2019Lorem ipsum dolor sit amet, consectetur adipisicing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam, quis nostrud exercitation ullamco laboris nisi ut aliquip ex ea commodo consequat.
John Doe
23/3/2019Lorem ipsum dolor sit amet, consectetur adipisicing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam, quis nostrud exercitation ullamco laboris nisi ut aliquip ex ea commodo consequat.