To: Senior Partner
From: Deidra Howard
Subject: Natalie Attired Unemployment Compensation Claim
Office File: PA205
Statement of Facts:
Natalie Attired began employment with Biddy’s Tea House in May, 2009. During her employment, Natalie received four evaluations, which improved consistently and showed no reprimands. There is no employee manual or written policy about employee conduct. In June 2010, Natalie purchased a full-sleeve tattoo which covered the entire upper right arm, the lower portion of which could be seen below the short sleeve uniform. The owner, Ms. Baker told Natalie that if she did not remove the tattoo she would be fired. Natalie refused to remove the tattoo, worked the rest of the week and was given her termination notice on Friday. Ms. Baker was unable to provide proof of a decline in sales during Natalie’s employment, but provided names of two customers who requested to be moved from Natalie’s section due to the tattoo. Natalie filed for unemployment compensation in July 2010, which was denied on the grounds that she was terminated for “misconduct” and was therefore ineligible for benefits.
1. Whether Ms. Attired’s failure to remove her tattoo when instructed to do so by her employer constitutes “misconduct” as defined by N.M. Stat. Ann. §51-1-7.
2. Did Ms. Baker provided proof that Natalie’s appearance negatively affected business as to cause reduced sales and profits?
1. No. Natalie’s refusal to remove her tattoo, by itself does not constitute misconduct, as there was no rule or policy in place forbidding tattoos.
2. Ms. Baker provided no proof of a decline in sales or profits during Natalie’s employment. However, patrons did register complaints regarding the tattoo.
Does Natalie’s refusal to remove her tattoo constitute misconduct under N.M. Stat. Ann. §51-1-7?
An individual shall be disqualified for and shall not be eligible to receive benefits if it is determined by the division that the individual has been discharged for misconduct connected with the individual's employment.
There is no definition for the term “misconduct” listed under unemployment compensation law. Therefore, the following definition has been adopted.
. . . ‘misconduct’ . . . is limited to conduct evincing such willful or wanton disregard of an employer’s interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good faith errors in judgment or discretion are not to be deemed ‘misconduct’ within the meaning of the statute. Mitchell v. Lovington Good…