Unit 8-Assignment
Memo

Statement of Facts: Natalie Attired a 23 year old female began working as a waitress at Biddy’s’ Tea House and Croissanterie in Truth or Consequences, New Mexico in May of 2009. Thirteen months after starting working for Biddy’s Tea House Mrs. Attired got a full-sleeve tattoo on her upper forearm. The tattoo was only partially covered by the waitress uniform required to be worn by the employee. Biddy Baker, the owner of Biddy’s Tea House told Ms. Attired to have the tattoo removed or be fired. Ms. Attired refused to have the tattoo removed and was terminated the following Friday one week from being warned.
Mrs. Attired had be warned by a “seasoned” employee of 10 years of Biddy’s Tea House that if the tattoo was visible she would be terminated. Other than the warning of her coworker there are no written rules or handbooks outlining personal appearance including but not limited to tattoos.
Mrs. Attired would like to know if she can sue the New Mexico Employment Security Board for denying her unemployment benefits under N.M. Stat. Ann. Sec. 51-1-7 (West, 2012) after ruling she was terminated from her employment due to misconduct.
Biddy Baker, owner of Biddy’s Tea House states her reasoning for terminating Ms. Attired is as follows: The “more mature” clients of the Tea House would be “disgusted and appalled” by the tattoo. Ms. Baker was unable to provide proof to a decline in revenue due to Ms. Attireds appearance. Ms. Baker did provide the names of two of her regular customers who did request not to be served by Ms. Attired and did state they did not wish to be served by her due to her appearance.

Question Presented:
Was Ms. Attireds behavior considered “misconduct”? The statute does not give the exact definition of what “misconduct” is therefore we must use common law to determine the meaning. Mitchell v. Lovington Good Samaritan Center, 555 P. 2d 696 (New Mexico, 1976), the case of Boynton Cab Co. v. Neubeck, 237 Wis. 249, 259-60, 296 N.W. 636, 640 (1941), provides the definition of “misconduct”:
“. . . ‘misconduct’ . . . 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 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.” (p. 698)

Short Answer:
No, Ms. Attired obtaining the tattoo was in no way proven to be a willful or wanton act to dilerberatly negatively affect her employers ability to generate revenue as stated in N.M. Stat. Ann. § 51-1-7 (2012).

Applicable Statute:
N.M. Stat. Ann. § 51-1-7(A)(2) (West, 2011) states that “[a]n individual shall be disqualified for and shall not be eligible to receive benefits: (2) if it is determined by the division that the individual has been discharged for misconduct connected with the individual’s employment.” Analysis:
No person who is terminated for “misconduct” can receive unemployment benefits.
Ms. Attired obtained a full sleeve tattoo after a verbal warning from a seasoned employee that was visible under her required uniform. Customers requested to not be served by Ms. Attired as well due to her personal appearance. In the case of Mitchell v. Lovington Good Samaritan Center, 555 P. 2d 696 (New Mexico, 1976). Mitchell was denied benefits due to her misconduct being disruptive and the Center was able to prove the misconduct on Mitchells part cost the company financially as well as her actions being “willful and wanton” disregard for her position.
Ms. Attired was evaluated 4 times in her 13 month employment period and at no time did she not correct any inconsistency found in her performance with the exception of the tattoo incident. There doesn’t appear to be any pattern of “willful or wanton” disregard for the employer’s ability to generate revenue. Rodman v. New Mexico Employment Security Dept., 764 P. 2d 1316 (New Mexico, 1988).
In the case of Its Burger Time v. New Mexico Department of Labor Employment, 769 P. 2d 88 (New Mexico, 1989) the same situation occurred when the employee changed her personal appearance however there was an employee handbook outlining proper appearance and hygiene. A front counter employee was terminated for coloring her hair purple. The employee handbook that was acknowledged by the employee did not state anything regarding hair color. Employee, Apodoca was terminated two days prior to dying her hair. Apodoca “presented uncontroverted testimony that no customers had complained about her hair but had in fact complimented her hair color” (p. 91). During the two days prior to her termination the court found the business showed no adverse affects of Apodocas refusal to change her hair color thus the finding was the appellee did not commit misconduct.
Conclusion:
Ms. Attireds benefits may be instated if Mrs. Baker can not prove that Ms. Attired obtaining the tattoo was “misconduct” as well as proof the behavior was with the intent to cause or disrupt the Tea Houses revenue. Ms. Baker also will need to prove her loss of business therefore affecting her revenue.