Legal Memorandum Natalie Attired Unemployment Compensation Claim.

STATEMENT OF FACTS

The client in this case, Natalie Attired is 23 years of age and is a high school graduate as well as having attended New Mexico State University but dropped out after one year and began waitressing. She has most recently been working for Biddy Baker, 60 years of age who has been in the restaurant business for more than 20 years. Every three months Biddy conducts an evaluation of the waitresses. The client in this case got a full-sleeve tattoo covering her entire upper right arm from shoulder to elbow and while the waitress uniform partially covers the tattoo, when the client wears short sleeves part of the tattoo is visible. Biddy asked the client to remove the tattoo and the client refused and was terminated on the grounds of 'misconduct' making her ineligible to receive employment compensation. The client has consulted the firm to seek adivce as to whether she has a claim against the NMESB for wrongfully withholding her unemployment compensation.

ISSUES/QUESTIONS PRESENTED

The issues in this case include those stated as follows:

(1) Does the refusal of the client to remove her tattoo constitute misconduct under the New Mexico statutes governing this issue?

(2) Is there evidence that the client's tattoo resulted in a loss of sales for Biddy?

(3) Does the client have a record of prior actions meeting the requirements of meeting a pattern of misconduct during her employment at Biddy's restaurant?

BRIEF

(1) It would appear that since Biddy did have customers who did not like the tattoo in their view while dining and who asked to be seated at a different table that on the face of it that the client did meet the requirements of misconduct. However, the employer did have the option and should have requested that the client simply keep the tattoo covered by wearing long sleeves while working which would have resolved the customer's concerns without the client being forced to remove her tattoo.

(2) There is no evidence that the client's tattoo resulted in a loss of sales for her employer.

(3) There does not appear to be any evidence of a prior record of misconduct on the part of the client while in the employment of Biddy.

APPLICABLE STATUTE/RULE

In the case of Mitchell v. Lovington[footnoteRef:1] the court found that misconduct is "…limited to conduct evincing such willful or wanton disregard of an employer's interest as is found...

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 Samaritan Ctr., Inc., 555 P.2d 969 (1976)] [1: Mitchell v. Lovington Good Samaritan Ctr., Inc., 555 P.2d 969 (1976)]
ANALYSIS/DISCUSSION

This analysis will examine the issues of the case along with the questions and answers to those questions addressed in this memorandum. First, the client, Natalie, got a tattoo on her arm that was quite extensive covering her arm from elbow to shoulder. The employer was not happy about this tattoo due to customer complaints and asked the client to remove the tattoo. The client refused and the employer filed the client on the basis of misconduct. The client was denied unemployment compensation benefits due to the dismissal based on misconduct and the jurisdiction of the case is in New Mexico and governed by the laws and statutes of that state. The statute that governs this type of case is that of §51-1-7 which states that an individual is "… is disqualified from receiving unemployment if the termination is the result of misconduct." This statute defines misconduct as "the willful or wanton disregard of an employer's interest as outlined in Mitchell v. Lovington.[footnoteRef:2] It is the contention of this researcher that the employer could have resolved this situation by requesting that the client wear only long sleeved uniforms when working but the employer did not attempt to resolve the issue rationally but instead only demanded that the client remove her tattoo. Secondly, there is no evidence that suggests that the tattoo of the client resulted in a loss of sales for the employer so the employer will have difficulty showing that the supposed misconduct of the client resulted in any harm to the employer's business. Lastly, the opinion stated in the case Mitchell v. Lovington[footnoteRef:3] also states the fact "mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability…