Are Kickbacks Prohibited by The Torah?

Rabbi Yitzchack Grossman

Question: Reuven is a hiring manager for a company that has an open position for which many people have applied. One of the applicants offers him an all-expense paid trip to Eretz Yisrael if he gives him the job. Is he allowed to accept this deal? 

Answer: Accepting a kickback like this definitely feels wrong but it is surprisingly difficult to articulate a clear halacha against doing so. 

The Divrei Malkiel discusses a case where an overseer of a tzedakah fund gave money to a particular poor person in exchange for a kickback. He first proposes that it would be theft from tzedakah for this poor man to receive this money, but then concedes that if the poor person is entitled to a share in the tzedakah money in any case, this would mean that no money is actually being stolen from the tzedakah fund.     

He then suggests that what the Gabbai Tzedakah did is forbidden, as a Gabbai Tzedakah is not allowed to have any negius, personal considerations, when he distributes tzedakah money. He explains that it is accepted that a Gabbai Tzedakah is held to the standards of a Dayan; therefore, he cannot have negius when giving out the money, which would make this kickback forbidden. 

While this reasoning may apply to someone in a public position like a Gabbai Tzedakah, it is not at all clear that the same would apply for a private business, like the one in question. 

Some have argued that an employee who takes a kickback for doing his job is guilty of geneivas daas from his boss, and if he is doing something that may have a negative consequence, he may be guilty of actual geneivas mamon. If, however, he is making a reasonable decision that isn’t harming the business in any way, it is not clear that he is guilty of either of these prohibitions. 

Others have argued that an employee who takes a kickback is guilty of accepting a bribe. While there are sources that say that the prohibition of bribery is not limited to judges, even these sources only clearly extend it to public officials and community leaders. It is not clear that it could be extended to people in private positions. 

Question: What if there are three equally qualified applicants and he has no real reason to hire one over the other besides for the fact that one of them is offering him a kickback. Would that still be problematic? 

Answer: If an employee acts against the interests of his employer in exchange for a kickback, or for any reason at all, that would clearly be wrong as he is supposed to be working for his employer’s interests and not against them. 

If all the candidates are equal and he is not doing anything against his employer’s interests by taking a kickback from one of them, it still feels wrong and may very well be prohibited according to one or more of the reasons listed above, but it is not 100% clear what the prohibition is.