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...
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