By: Veronica Decker
Introduction to Legal Analysis and Writing
September 30, 2013
Statement of Facts:
Our client is Natalie Attired, Ms. Attired began working as a waitress at Biddy’s Tea House in May 2009. During her time at Biddy’s, Natalie was evaluated four different times. Her evaluations showed improvement. There was no manual or written policy about employee conduct. In June 2010, Natalie purchased a full-sleeve tattoo that covered her entire upper right arm, from shoulder to elbow. The tattoo was partially covered by the waitress uniform, except for the lower portion near her elbow. The owner (Biddy Baker) had told Natalie that, “if the tattoo was not removed, ...view middle of the document...
1. Did Ms. Baker provide proof of Natalie’s appearance having a negatively effect on the business, causing sales and profits to do down?
2. If Natalie’s refusal to remove the tattoo, after instructed to do so by Mr. Baker, constitutes ‘misconduct’ as defined by N.M. Stat. Ann. §51-1-7?
1. Ms. Baker provided no proof of Natalie’s appearance causing sales and profits to go down in the business. However, she did provide names of two longtime customers who complained about the tattoo.
2. No. Natalie’s refusal to remove the tattoo does not constitute misconduct. There was no rule or policy forbidding tattoos. Therefore, there were no rules broken.
According to the New Mexico’s statute §51-1-7, a person is disqualified from receiving unemployment if the termination is the result of misconduct. ‘Misconduct’ (from the Mitchell case) is limited to conduct evincing such wilful 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/her employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability. Mere, 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.
An individual shall be disqualified for and shall not be eligible to receive benefits:
If it is determined by the division that the individual left employment voluntarily without good cause in connection with the individual’s employment.
Since Natalie had no prior incidents in which she was reprimanded and all suggestions for improvement on her employer reviews were addressed and resolved, the ‘misconduct does not apply to her case.