HR Hero Line

Linking pay raises to company tattoos: good idea or legal minefield?

by Peter A. Jones

A New York employer offered its employees a 15 percent pay raise if they had the company logo tattooed on their bodies. Reportedly, there were no limitations on the size or location of the tattoo, and about 40 employees accepted the offer and are receiving raises after having been inked. There are many potential legal issues raised by this novel idea, however.

Legal minefield
One of the first issues that comes to mind is whether the tattoo arrangement creates any sort of implied or express employment contract. Since New York is an at-will-employment state, a written promise of job security generally is required to limit the at-will doctrine. However, the terms of such an arrangement presumably would be in writing and would need to be carefully crafted to avoid creating an exception to the employment-at-will relationship. Also, it seems that an employee accepting the offer and getting a tattoo would have a strong argument that the employer created implied limitations on the right to discharge him because of the tattoo (absent clear terms affirming the at- will relationship).

Another issue that could arise from such a program is the amount of payment an employee is entitled to in exchange for getting a tattoo. The program reportedly provided a 15 percent salary increase for employees who had the company logo inked on their bodies. Disputes could easily arise regarding the amount of the payment or raise, especially if future raises are less than expected or the language of the commitment is unclear.

The placement of the tattoo also could create issues. If the idea is to place the logo in “view,” the company and the employee would have to consider the body parts that would be appropriate and reasonable. The size of the tattoo may cause problems as well. For example, could a large and strategically placed tattoo create hostile work environment issues for other employees?

Finally, what happens when the employee separates from employment, especially under negative circumstances? Could the employer demand that he have the tattoo removed, and who would pay for the procedure? Might the employee modify the tattoo to deface the logo in some way? Given that the employer authorized the tattoo in the first place, it probably would have very limited intellectual property rights to pursue removal or prevent defacement. Further, contract rights involving a former employee’s body likely would be void and against public policy.

In other words, the benefits of the tattoo during employment could quickly be outweighed by the negatives after the employee separates from employment.

Bottom line
In an age when tattoos are common, it was probably predictable that an innovative employer decided to introduce a company tattoo program. It’s worth considering the pros and cons before putting such a program in place. This appears to be an area in which caution is well-advised.

Peter Jones is a member in the Syracuse office of Bond, Schoeneck & King, PLLC. He may be contacted at jonesp@bsk.com.