CanI be fired for having tattoos that I had before I was hired?
3 attorney answers
New York is an employment at will state. This means that an employee can be fired at any time unless there is some exception to the employment at will doctrine or unless an employee is under contract with his employer. If your employer has violated your civil rights in any way [age, sex, race, etc.,] or if you are being retaltiated against pertaining to the protection or enforcement of such rights or if you are engaged in a protected activity, such as whistleblowing, you may have an action against a former employer if the termination can be linked to such retaliation. Having a tattoo, unless there is some religious significance, may not be such a protected activity. Most employers, under the employment at will doctrine can terminate your employment at any time without stating a reason. In the context of an unemployment hearing, if your employer contests such compensation, a reason may come out. Absent such a reason that might possibly show a violation of protected rights, it may be very difficult to find a basis to pursue a claim against your employer for wrongful termination. However, if you are terminated and it is explicitly stated in a provable way, that you were terminated for the tattoo, you may have a basis for a constitutional challenge if your employer does not have a written policy or if such policy is not equally enforced. Depending on how your situation unfolds, it may be in your best interest to consult with a labor and employment attorney.
I am a California attorney and cannot give legal advice in your state. My comments are information only, based on federal law and general legal principles. YOUR STATE MAY HAVE ITS OWN LAWS THAT OFFER SIMILAR OR GREATER PROTECTION. If I mention your state’s laws, it only means I did a quick Internet search and found something that looked relevant. You MUST check with an attorney licensed in your state to learn your rights.
Employers are permitted to impose reasonable grooming standards. Many employers do not allow visible tattoos or piercings other than for earrings on women. The employer has the right to set the tone for its workforce and to create the public image it wants.
So yes, you can be fired for having tattoos. You can be fired for almost any reasons. The harsh reality is employees and job applicants have very few employment rights, and employers have a lot of leeway in how they choose to run their businesses. In general, an employer can be unfair, obnoxious or bad at management. And an employer can make decisions based on faulty or inaccurate information. An employer has no obligation to warn an employee that he or she is not performing as the employer wants. It’s not a level playing field. An employer hires employees to provide work for its benefit, not for the benefit of the employees. Don't expect the employer to take care of its employees; it doesn’t have to and it rarely does.
There are some limitations on what an employer can do, mostly in the areas of public policy (such as discrimination law or whistle blowing), contract law, union-employer labor relations, and constitutional due process for government employees. Please see my guide to at-will employment which should help you understand employment rights: https://www.avvo.com/legal-guides/ugc/an-overview-of-at-will-employment-all-states. After you take a look at the guide, you may be able to identify actions or behavior that fits one of the categories that allows for legal action. If so, an experienced plaintiffs employment attorney may be helpful.
Keep in mind that if the company policy prohibits tattoos but you are seen to have one, there could be dissent in the workplace. You might tackle this head on by speaking to the higher up who saw you in private and respectfully, and offering to keep the tattoo covered.
Employment rights come from the state and federal legislatures. One of the best things people can do to improve their employment rights is vote for candidates with a good record on pro-employee, anti-corporate legislation. Another way to protect employment rights is to form or affiliate with a union, or participate in a union already in place.
I hope you can resolve your situation and wish you the best.
*** All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. *** Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. No attorney-client relationship is created based on this information exchange. *** Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California, and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis. ***
Unless your tattoos are tied to a religious devotion or your national origin, there is very little my firm could do to help you. I am sorry.
This answer does not constitute legal advice and you should contact an attorney to confirm or research further any statements made in this answer. Any statements of fact or law I have made in this answer pertain solely to New York State and should not be relied upon in any way in any other jurisdiction. Additionally, we also encourage you to reach out to us via Twitter (https://twitter.com/#!/WhiteRoseMarks) or Facebook (http://www.facebook.com/WhiteRoseMarks) if you have follow up questions as we do not monitor questions after providing an initial answer.
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