Consider this post an unplanned addendum to my earlier series on domination and at-will employment.

A friend of mine just got “fired”–you’ll see in a minute why the word is in scare quotes–and we’re disagreeing about what it all means. Naturally, I thought I’d share tidbits of our discussion here. My friend blames himself; I blame his employer. Which of us is right? I’ll give you an impeccably impartial account below; you decide. Then feel free to chime in either way.

Let’s call my friend “Claude.” Claude was caught vaping on the job. There’s no explicit rule in his company’s handbook against vaping on the job. It’s simply understood that “one does not vape on the job.” It’s not clear why this is so. “It is what it is.” Argument is not invited, and evidence is not required. We all know evil when we see it.

On the day that Claude was caught, a supervisor came over to him when he wasn’t vaping, said that he’d earlier been seen vaping (not clear by whom), clucked in disapproval, and asked Claude to leave the premises. Being the compliant sort, Claude did as he was told without asking any further questions: he was then “escorted” to his car, and observed by the supervisor until he left.

A few days later, Claude received a letter in the mail from HR. The letter said nothing about vaping, nothing about an infraction, and strictly speaking, nothing about termination. What it said was that Claude’s “services were no longer necessary” at the organization, and that Claude was being “released” as of a certain date–the date being, lo and behold, the unspoken Day of Vaping Infamy. It was left unspecified what Claude was being released from: neither “contract” nor “employment relationship,” nor “job,” nor “responsibilities” nor anything else appears in the letter as that-from-which-release-was-given. You are not, in this universe, released from anything in particular. You’re simply “released.” It’s your job to figure out from what.

Claude has now set about looking for a new job in the same field. All of the job applications he encounters ask whether he’s ever been “terminated” from a prior job, and if so, why. Claude is warned that his answers must be truthful. What to do? And more broadly, what to think?

As just mentioned, Claude has a self-recriminatory view of what happened.  On his interpretation, he was terminated for cause, deserved to be terminated, and is obliged in candor to confess his guilt on any future job applications. Obviously, this dampens his chances of getting another job, but Claude is undeterred; candor, he insists, is his moral obligation. As for ruining his chances this way, he simply hopes, with heart over hand, for the mercy or indulgence of any would-be employer that might (or might not) grant him another job. When I observe that this seems a recipe for perpetual unemployment, Claude shrugs helplessly, then expresses his grim resolve to keep digging so as to deepen the hole he’s in.

Claude is the first to admit that the “termination” letter is vague, and also to admit that its vagueness is (vaguely) problematic, but he nonetheless insists that there are no good grounds for complaint against his former employer, and no excuses for evading the demands of full disclosure when it comes to future employers. The letter’s vagueness (Claude continues) is just a benign expression of the legendary “politeness” of the denizens of his region. People around “here,” he explains, are simply not as direct or abrupt as they are in, say, the Northeast. They don’t just come out and tell you that you’re fired. Instead, they do their best to spare your feelings and soften the blow. So that’s what they did here. Anyway, it’s understood that the phrase “your services are no longer required” means “you’re fired.” The letter uses as direct a phrasing as is compatible with decorum. So there’s no reasonable cause for complaint.

I don’t buy it. Let’s start with the assumption that this is a letter of termination for cause. If so, the employer owes the recipient of the letter a specification of the cause that produced the termination. What is a cause for but to be cited as a cause? And what is a for-cause termination letter for except to identify the cause for the termination? It would be a strange game to write a for-cause letter of termination but fail to say that it was one, or to have a cause but refuse to specify it.

Claude demurs. I’ve got it all wrong! My adversarial zeal misses the benevolence in the omissions. The reason for the termination, Claude points out, was Claude’s own embarrassing infraction–vaping, an act that elicits fear and trembling in the hearts of men. Explicitly mentioning this embarrassing infraction in print would merely be cause, so to speak, for yet further embarrassment. What could be more embarrassing than clarity or candor? Sincerely wishing to spare Claude this further embarrassment, Claude’s employer decided to omit any mention of the shameful reason for the termination. And so it went unmentioned. What looked like evasion was an act of mercy.

My own view is that Claude’s guilt-fest is inappropriate, unnecessary, and self-defeating. If Claude would like, in a spirit of moral BDSM, to berate himself in private for his vaping habit, that’s fine, but moral self-flagellation is his business and irrelevant to the personnel issue under consideration. Anyway, if Claude is really desperate for punishment, rest assured that it’s en route: there are few punishments like conducting a job search under conditions of financial duress as you needlessly sabotage your own application process. Sisyphus would approve.

Setting those non-issues aside, there are, as I see it, two sets of real issues worth discussing here, neither requiring self-recrimination on Claude’s part. The first set concerns the conduct of the “terminating” employer, the second set, that of the would-be future employer.

The former employer. Claude’s former employer has, to my mind, deployed four distinct sorts of bullshit artistry here. The bullshit involved is so common that it’s become accepted and normalized as routine in American work life, but that’s a statement of the pathology involved, not a justification for it. It’s worth being completely explicit about every element in this routine, just to see the bad faith involved for what it really is.

Problem 1: Though it would be an exaggeration to say that Claude’s employer has made an accusation against Claude, it’s reasonable to infer that an accusation is lurking somewhere in the vicinity. It’s even reasonable to infer that the infraction alleged has something to do with the “termination.” But more obvious than either thing is that no official accusation has been made of Claude at all, nor has this non-existent accusation been made the basis of any termination described in that way. “Someone said that someone saw something” is not an accusation, but a piece of hearsay masquerading as one. An accusation requires an accuser accusing someone on the basis of testimony, where the testimony, in turn, is offered as evidence of some infraction, and where the infraction is written down somewhere. The evidence is then used against the accused in some determinate sort of hearing intended to establish guilt–no matter how “obvious” guilt is taken to be. Here we have no accuser, no testimony, no evidence, no hearing, and no rule. As far as I’m concerned, then, we have no infraction.

Suppose I’m wrong about 90% of this. Suppose that there is some written rule against vaping on the job, suppose that some accuser has alleged it, suppose the accusation is true, and suppose that the accuser’s identity must be shielded to protect her against retaliation. The fact remains: it still somehow has to be established, if only pro forma, that the infraction took place, and that it was an infraction. There is a real difference between a pro forma finding of guilt and a refusal to engage even in a pro forma process of accusation. It’s the difference between an organization that has some minimal commitment to procedure and an organization committed on principle to having its way by fiat.

Claude’s organization falls squarely into the latter camp. But that strikes me as a much bigger problem than vaping. If someone wants to argue that vaping on the job is bad, I guess my response would be: why is it worse than a principled commitment to an institutionalized refusal of accountability?

Problem 2: Suppose there was an infraction. The next obvious question to ask, at this organization supposedly so adherent to rules, is whether there’s a rule that tells us how to respond to the infraction. In this case, I’m aware neither of a rule against vaping, nor of a rule that dictates that termination is the proper response to it. Given this, discretion must become the default rule.

It’s worth grasping something that often eludes recognition. All organizations have rules and rule books, but no reasonable organization can or does demand 100% adherence to every single rule in the book on every occasion where it has application. No institution of any complexity could survive the application of rules applied in this manner. To think that it can is to misunderstand the role of rules in human life. This, too, strikes me as a much bigger problem than vaping.

Rules are written prescriptions that presuppose a commitment to discretion, good faith, honesty, and a common purpose. Subtract these, and what you have is mindless rule-worship, and depending on the crafting of the rule-book, outright chaos. Every union boss knows the tactic of “working to rule,” that is, of inducing paralysis in an organization by 100% literal adherence to the rules in the rule book. And every bad faith boss or law enforcement officer knows the trick of wrecking someone’s life by demanding 100% literal adherence to every law on the books after tradition has established a more flexible, less literal-minded conception of adherence to the rule of law. That’s why Aristotle famously made equity–the correction of the black letter of the law in the direction of substantive justice–an essential part of legal justice. Paradoxical as it may seem (to some), you can’t apply every law on the books all at once, any more than you can withdraw every dollar from every account in a bank all at once. The result would be a form of self-subversive insanity, not justice.

A judicious employer would not jump immediately from “you are guilty of an infraction” to “you must be fired right now.”  She would ask how significant the alleged violation was, and whether it really merited termination. Offhand, I can’t think of a single good reason why a first instance of vaping-on-the-job would merit termination even if it was explicitly contrary to company policy, particularly in a case where no rule demanded termination for that offense.

If the claim is that this is not a first offense, then we need to see evidence of the other offenses alleged. But in this case, no other offenses have been alleged. Strictly speaking, as far as HR is concerned, no single offense has been alleged. Given this, we can’t know whether Claude was terminated for vaping, or whether vaping was conceived as the straw that broke the camel’s back. If “other straws” were involved, we have no way of knowing that they were, or what they were. The whole situation is, by design, a muddle. It’s a plausible hypothesis that the muddle is there because HR wants it that way. Muddles are what they do best.

I would add: if an employer thinks that vaping is such a terrible thing, it should say why. I don’t vape, but I don’t see what’s so terrible about it–this despite the anti-vaping propaganda that, as a commuter, I’m subjected to every day, several times a day. I don’t claim that vaping is a form of physical fitness, but most of this anti-vaping propaganda looks like bullshit to me. My first impulse is not to take it seriously, but to rip it down or failing that, to take a piss on it. Why do these hacks insist on patronizing us with this garbage?

Vaporous propaganda: New Jersey Transit Rail Station, New Brunswick, New Jersey

One suggestion might be that vaping interferes with job performance, but that seems a stretch. Claude works a very ordinary job. Like most people, he knows how to walk and chew gum at the same time. So I assume he knows how to puff on a vape thing and do his job at the same time. Setting aside the current President of the United States, most of us probably can. So special cases aside, it’s not clear why this rule exists, if it does exist. Multitasking in the ordinary sense–giving an employee multiple simultaneous high priority tasks to do–interferes more demonstrably with job performance than vaping, yet multitasking is regularly demanded by employers as some kind of obvious job credential, and is valorized throughout our work culture as though anyone who does it deserves a medal for it. I so far have not met a single person able to explain this double standard with any degree of persuasiveness. 

Maybe the claim is that vaping is unhealthy. Maybe, but so are a lot of other things, like eating too much candy, consuming too many calories, failing to get one’s steps in, over-using antibiotics, misusing pain pills, driving while texting or looking at your phone, turning the volume too far up on your ear buds, and coming in to work with a hangover. There have to be limits on the arbitrary obsessions or fixations that can permissibly be written into company policies. Put another way, there comes a point when an employer needs to learn, quite literally, to mind his own fucking business.

Problem 3: Now consider the letter. Regardless of any rationalizations (including Claude’s) about “regional differences,” the phrase “your services are no longer required” does not mean “you are fired.” I don’t care if Google’s AI insists that it does. It does not. In fact, the phrase is deliberately equivocal.

The underlying problem here, I think, is that the word “fired” is ambiguous as between being laid off and being terminated.  A company terminates someone when the individual is deemed (whether correctly or not) to be defective as a worker, i.e., when she fails to satisfy work-related duties or expectations. A company lays off its workers when (for whatever reason) it no longer needs them–for instance, when demand for a certain service dries up, or when the organization’s business plan changes so that a certain individual no longer has a role to play in a given plan.  A termination implies a (perceived, not necessarily real) defect in the worker terminated; a lay-off implies neither a perceived nor a real defect. A termination is triggered by a highly particular cause, a lay-off by a structural one. A termination is narrowly focused on one or a few people; a lay-off is generally broadly based, part of a set of people being “let go.” These are not at all the same thing, and it seriously confuses matters to conflate them.

Of course, some people thrive on confusion. It’s no surprise that the confusion involved serves the convenience of employers at the expense or livelihoods of employees. If you hear that someone has been “fired,” you don’t know whether they’ve been laid off or terminated. Suppose you blur the two things. Well, the reasons for a termination are generally easier to understand–are less abstract–than a lay off. Reasons for termination are highly particular and concrete: someone fucked something up. Whereas reasons for lay-offs are highly abstract and theoretical-sounding: demand for x has dried up in this sector. People therefore commonly assume that anyone “fired” has been terminated, not laid off. They then infer that anyone terminated has done something to deserve it. They make this inference even in a work environment where people are terminated at-will–without cause.

This is bad enough for people who’ve been terminated, since you can as easily be terminated on the basis of a false accusation as a true one. But it’s worse if the employee has merely been laid off. In this case, no one in management or HR thinks that an accusation is involved. Yet, having been “fired,” the employee operates under a cloud of unfounded suspicion as though they’d done something wrong. The disadvantage to the ex-employee of being in this situation is obvious. The advantage to employers is less obvious but there: it becomes easier for employers to insinuate that those left jobless deserved their fate without anyone’s having to explain why, or even suggest that there was a reason why. It suits most employers for others to blame the victim without the employer’s having to say a word one way or the other. That is the very essence of unaccountability–and the living essence of the American job market. The people whose jobs are most secure make life miserable for those whose jobs are least secure, insinuating without ever having to prove that the misery and insecurity as well as the comfort and security are all deserved–even if none of it is.

Though vague and equivocal, the phrase “your services are no longer required” is much closer in meaning to “you’re being laid off” than to “you’re fired.” If an employer wants to be understood as firing an employee rather than merely laying him off, it seems to me that the employer has an obligation to say just that. If he fails to make his meaning clear–which is not a difficult or costly thing to do–then the terminated employee is justified in capitalizing on the unclarity of what was said. In the absence of specification, it’s reasonable for anyone fired to infer that he was laid off, not terminated–even if he thinks he knows why he was fired. I’ll explain the practical implication in a moment. For now, I simply emphasize that it is a gigantic mistake to do the work of your destroyers–and that anyone who fires you without a good reason is a destroyer. If they want to destroy you, let them earn their keep. Don’t help them. You don’t even work for them any more. There can’t be anything stupider than working for your enemies for free.

Problem 4: In this case, I don’t grant that a “termination” took place. But even if you do, I would still insist that the termination in question is an at-will termination, not a for-cause one. The employer in this case has gone out of its way to stay mum about the infraction that supposedly took place. HR is therefore insisting on exercising at-will powers even in a case where it regards itself as having a for-cause reason. It would be an act of stupidity for Claude to supply a cause for them that they are reluctant–too dishonest, too cowardly–to adduce themselves.

The reason for their reticence on the matter of cause is obvious, and has nothing to do with Claude’s “regional niceness” theory. An employer that has at-will powers will use those powers as a first resort precisely to preserve the non-accountability that at-will powers protect. If I’m an absolute monarch who can with impunity do anything I please, why distinguish between the cases where I have good reasons for what I do and those where I lack them? To do so is to invite avoidable scrutiny with respect to the first, and to draw unwanted attention to the discrepancy between the first and second. It’s much easier to take the uniform, consistent position that everything I ordain is to be done simply because I ordain it. American firms stand vis-à-vis most of their employees as absolute monarchs vis-à-vis their subjects. In today’s world, an MBA and a managerial position is the functional equivalent of the divine right of kings. It’s past time for the lowly peasants and burghers to respond in kind.

The would-be future employer. I said that there were two sets of issues worth discussing here, one having to do with the former employer, and one having to do with the prospective one. I’ve just identified four distinct pieces of bullshit artistry engaged in by the former employer. The would-be future employer, I would say, is engaged in just one: reliance on all of the bullshit artistry that came before.

Suppose that a job application asks you whether you’ve previously been “terminated” from a job, and if so, asks why. This seems a superficially fair question to ask, but I don’t think it is. For one thing, it’s not clear what it’s asking. For another, it’s doubtful that fairness could possibly be served by demanding an answer of the form being demanded.

The question whether you’ve been “terminated” is, as you might guess, ambiguous as between whether you were fired or were laid off. It’s also ambiguous as between whether there was any good reason to do either thing. If you were accused of something, you are not being asked what form the accusation took or how (or if) it was adjudicated. Obviously,  your supervisor is not being asked how reasonable it was to terminate you for this infraction, either. You are threatened with sanctions for giving a false answer, but it’s taken for granted that no one will face accountability for leaving you in the dark or even lying to you about pertinent matters.

At one level, the ambiguities here make it unclear how to answer the question asked of you. By design you don’t know whether you were “terminated,” much less why. No one ever told you. No one had the obligation to tell you. There were no procedures. There were no rules. There was no hearing. Someone said they saw something, and then you got this mysteriously worded letter. Given the ambiguities, the question asked can’t really be answered.

But it’s worth going beyond this. Both terminations and lay-offs are complex. Yet what is sought on the job application is a simple answer. In other words, what is being demanded of you as part of the application process is the impossible. “Take something factually complex. Oversimplify it, but stick to the facts.” Well, that can’t be done. And the people making the demand are not stupid. They know that it can’t be done. Yet that is their demand, and they’re not budging. The resemblance to terrorism is not accidental. HR officers are the soft terrorists of everyday life.

If HR officers were minimally honest, they would come out and say that the whole application process is a cynical game, and that the purpose of playing the game is simply to find out how willing an applicant is to play it.  But they’re not honest. They demand honesty; they conspicuously fail to practice it. Honesty, as they play the game–and it is a game–is a one-way street. You are to tell them the truth, but they can do with the truth as they please. Why not? They hold the cards. They have a job to offer you. It’s tempting to regard the job offer as your reward for being truthful with them, but that’s a senseless illusion. The job is a substitute for truth-telling, not a truthful response in kind. This is why there is now a whole pathetic industry devoted to perfecting the art of lying in job interviews. Pathetic as it is, there is a grain of truth in the premise behind it. Total candor is obvious suicide. One way or the other, survival in the job market requires clever dissimulation. This is what Claude has yet to learn.

From my perspective, Claude has gotten his case desperately backwards. He thinks that what the case shows is his weak-willed failure to exercise self-control over his vaping habit. That may be peripherally involved, but that’s not what the case shows. Vaping is a trivial, even ridiculous, offense. It may deserve a reprimand, but not much more. But cynicism, dishonesty, bad faith, and domination are far from trivial offenses. Worse still is the suborning of dissimulation in those who deal with you. Those are the offenses being indulged in, not by Claude, but by his former employers, his future employers, and at a certain level, by almost all employers. The result is a grotesque moral inversion: trivial offenses are pursued as though they were serious ones; serious ones are ignored as though they were non-offenses. By this expedient, trivial offenses come to be regarded as serious, and serious ones become the norm.

Call it the soft domination of everyday life, the real-life enactment of the soft dom porn that seems to turn so many people on.  If I described the power that HR holds over the average employee as “domination,” I would doubtless be accused of exaggeration. Domination? It’s just an everyday thing. People lose their jobs all the time. What’s the big deal in this economy? You lose one, you get another!

No, you don’t. If you lose your job, you lose your livelihood. Without a livelihood, it becomes both more urgent and more difficult to find a new job. But getting a new job presupposes a clean record. And being fired implies a taint on that record. The more candid you are about your record, the less likely it is that you’ll get a job. The less candid you are, the more likely to be caught in what is construed as a disqualifying dishonesty. I don’t mean to imply that it is impossible to escape the circle. I simply mean to draw attention to the fact that it is a circle. The smaller its circumference, the greater the domination.

The circumference may vary from case to case, but not the sense of constriction. Depending on who you are, and where you are, the circumference can narrow to a very small point. When that happens, no recitation of feel-good statistics or positive economic indicators or Horatio Alger stories will help you. Nothing will conceal the fact that your desperation is something only you feel, but remains undeniably real for all that. You could sit there and blame yourself, but when you’re done, some force majeure will remain that only the most blindly self-recriminatory soul would ignore. When you grasp that, you grasp, maybe for the first time, that domination is for real, even when, like soft dom porn, it chooses to express its dominance in the language of praise, care, and polite omission rather than overt degradation. It may not kill you, but it doesn’t make you stronger. The question then becomes whether you surrender to its blandishments, or resist.