Of course I must. And I must mathsplain it. I took statistics in college, you know.
Here and Now ran this piece about the lengths employers are going to in the effort to retain their Millennial employees, including study abroad sponsorships and relaxed dress codes. The latter point, of course, is a horse carcass that has been beaten so vigorously and for so long that hardly a bite of meat remains attached to its skeleton. I understand that my preference for the Dockers and the aloha shirts is eccentric among men of my age, but if people five to ten years younger than me can be induced to say something as degrading and thoroughly fucking nuts as “welcome to Noodles!” in public for a dollar or two above minimum wage (if even that), they can sure as hell be induced to dress formally for a steady salary of $60k or more. Funny thing: one never hears complaints about how investment banks can’t attract young recruits because they don’t allow employees to dress like cosplay garbagemen angling for a drummer’s slot in some shitty Seattle garage band. A slightly more workaday formal dress code may be a problem for Enterprise Rent-a-Car in its quest to groom management prospects, by which I mean that Enterprise offers shitty pay for meaningless, demoralizing jobs. They could turn that gig into full-on Glengarry Glen Ross and still be drowning in their own applicant pool if they offered a starting salary of $90k; look at big law.
Here and Now’s references to the Millennial compulsion to dress shabbily at all times and everywhere got the segment off to a bad start. This trope is frankly bad news. It serves as a cheap narrative crutch for storytellers who are too intellectually bankrupt, vacuous, or lazy to think for themselves. It’s the stuff of ten thousand shitty generational warfare clickbait pieces. More insidiously, it serves as a cheap device for the managerial class to show its contempt for its workforce and applicant pool: just look at them, they’re all a bunch of slobs. It seems that a cohort of shitbirds in dot-com and public relations decided to declare casual Friday all week as the official dress code for everyone under the age of thirty, probably because looking at young people as individuals, or even as a number of discrete subcultures, would have allowed too much independence for marketing and HR purposes. Plenty of Gen Xers dress for shit after hours, too, but the narrative has never accused them of throwing a passive-aggressive whining fit whenever someone asked them to clean up for a client meeting.
Then there’s the job-hopping stigma. Jason Bellini claimed, in extremely mathematically sloppy terms, “sixteen months: that’s how long people between the ages of twenty and twenty-four years old will stay in one job.” I assume that he was referring to mean tenure. Or maybe he was referring to median tenure; damned if I can say for sure from that sort of articulate but inchoate diction. What’s much easier to ascertain is that hiring managers assume that young people have no staying power. For this attitude, they ought to be impressed into chain gangs on a sugar plantation. The hiring managers, I mean. If they presume bad faith on the part of their applicants and new hires, they simply are not morally fit for positions of authority.
Bellini managed to say next to nothing about the reasons for young employees leaving jobs so early and often. He mentioned accusations that young people are “spoiled brats” and instances of ambitious youngsters jumping from job to job in pursuit of pay raises, which ought to suggest to hiring managers that if they can’t take the losses, they shouldn’t be playing the game. He said nothing, however, about the role of layoffs, firings, and jobs whose full terms are sixteen months or less. There’s no lasting sixteen months in a seasonal job that is over in four. He gave listeners no idea of what the fuck kind of statistics he was using to draw his conclusions. Bellini and his interviewer, Jeremy Hobson, mentioned nothing about the second Great Depression that has been popularly euphemized as the Great Recession, and the brutal effects that it has had on young people, even though the 20-24 set they were discussing graduated into a job market after the start of the depression (the most ambitious and oldest among them squeezed in some seasonal or after-school work before the full force of the depression hit, but the amount of money they earned and work experience they gained was fairly small). One would hope that Bellini and Hobson would have some familiarity with the recent secular economic crash, given that they’re in the news business.
One would hope for a lot of things, like more of Scott Simon and less of Melissa Block and Arun Rath.
This poorly told tale gets even worse. Bellini described office managers as being awfully prone to severe butthurt at the hands of their prodigal Millennial employees. That’s my description, of course, not his. His description of managers’ expectations was “okay, I expect you to stay here for two years, and if you leave before then, you will have violated my trust.”
Well bend me over the water cooler and stick it up my ass. A manager has no legal recourse whatsoever against this “violation” of his “trust.” What Bellini described here is the breach of a legally unenforceable oral contract imposed unilaterally by the more powerful party in an effective state of duress. The only state in the union that requires any sort of contract instead of at-will employment is Montana; in every other state, employers and employees alike may generally terminate an employment agreement at any time, for any reason that is not overtly discriminatory, and with any amount of notice. Military service obligations are backed up by the full force of the UCMJ, but I’d be floored if Bellini or Hobson gave a moment’s thought to the military during that segment. Excluding the goddamn Army and its sister services, there are only a few narrowly defined circumstances in which an employee may lawfully be compelled in any fashion to continue working in a specific capacity or be sued for failing or refusing to do so. Probably the most solemn obligation of this sort falls to attorneys whose clients have unresolved matters pending in the courts, especially criminal defenders, but lawyers are held to a set of professional ethics of a rigor that are unimaginable in most lines of work.
Aside from lawyers with outstanding client workloads and possibly other licensed professionals in similar circumstances, the only way to lawfully compel an employee or contractor to complete agreed-upon work is to enforce provisions of a previously agreed-upon contract. “You told me you’d pay your dues, asshole” is not a legally binding contract. “The way things work around here” are not legally enforceable, you filthy piece of shit. The law supersedes the whims of bumptious employers. One general provision of the law is that, barring a prior written contract, entered into by parties of sound mind and free will, agreeing to a set term of employment, there is no guarantee of employment by either party. Either employer or employee may take this job and shove it at any time. This isn’t to say that fickle resignations or firings or layoffs are advisable; it’s just to say that they are generally not actionable.
Here’s where the lawsplainer gets even more damning for pushy employers. Bellini discussed managers refusing to provide junior employees with references for outside job applications and the negative effects that these refusals can have on their employees. This is dangerously close to tortious interference on the managers’ part, if not clear over the line. In layman’s terms, an employer may not deliberately interfere with an employee or former employee’s efforts to find work elsewhere. If an employer does deliberately interfere with an employee or former employee’s job search, the employee can sue him for lost wages and maybe punitive damages (ask a lawyer for details about the latter element, maybe one who advertises on daytime TV; I’m just an underemployed farmworker who took the LSAT once). The point is that an employer can’t get in the way of his employees when they’re looking for work elsewhere just because he’s butthurt or vindictive or generally foul. If an employee wants to make a clean break and is not subject to any specific outstanding contractual obligations (an unlikely case, as described above), his employer must not interfere. It doesn’t matter what degree of loyalty the employer demanded or cajoled the employee to promise; if the employee wants to move somewhere else, the employer has a legally enforceable duty to allow the employee to make the transfer as smoothly as the employee can manage.
Refusing to provide at least a neutral reference is legally dubious in these circumstances. To be safe, consider it actionable. Providing a negative back-channel reference to hiring managers at other companies is actionably tortious, period. The only purpose to refuse to provide a reference or to provide a negative reference in these circumstances is to retaliate against the employee and interfere in his job search. Anyone who does this deserves to be bodily hauled into court by bailiffs.
Bellini’s warning about young employees “burning their managers” was backwards. Certainly employees are wise to do what they can not to needlessly antagonize their bosses. Most employees, I suspect, do exactly this as a matter of course. By the same token, I suspect that many fewer managers are equally magnanimous and gracious.
It’s telling that the tendency of managers to withhold references for their employees because they’ve been “burned” has been under discussion on a nationally syndicated NPR program. This is downright lawless behavior. Employers have a fiduciary responsibility to their employees to provide them with neutral or positive references upon request. If an employee behaved badly enough to truly deserve a negative reference, the employer probably has grounds to take civil or criminal action against him, and it would be wise to do so, to cover its own ass if nothing else. But only a small percentage of employees truly deserve negative references. Butthurt because an employee is quitting too soon is absolutely not grounds, ethically or legally, to withhold a reference or provide a negative reference. This is clear cut.
How employees should deal with butthurt, retaliatory managers during their job searches seems pretty straightforward, too. First, they should request a reference. If their bosses refuse or drag their feet, they should demand at least a neutral reference. If their bosses are still recalcitrant, they should return later with a written neutral reference of their own, an employment attorney’s business card, and a notary public, and give boss-man an ultimatum: review and sign now, or be sued for tortious interference and a court order compelling a positive reference.
At this point, the employee will probably have to lower the boom. If an employer is petty enough to withhold a reference or provide a negative back-channel reference just because he feels burned by an early resignation, he’s probably also petty enough to go ballistic and start falsifying internal company documents for the purpose of harassing and libeling the employee in retaliation. There may be no option short of counterburning a full Sherman on the boss. But if an employer has the gall to withhold references out of pique, backdate negative performance reviews, provide negative back-channel references out of butthurt, or otherwise make separation needlessly distressing for an employee, it deserves a lawsuit.
The mesothelioma and vaginal mesh bar is an embarrassment, but its ethics are only bad in absolute terms. It’s more upright than many employers, and it’s emmeshed to larger balls than many employees these days. It would be nice, however, if it were consistently more embarrassing than NPR.