Memorandum of Law

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Memorandum

To:                         Senior Partner

From:                     Patricia Oswalt

Date:                      11/29/2011

Case:                      Natalie Attired v. New Mexico Employment Security Board

Office File:             PA205-02

Docket Number:     NA

Re:                         Whether Natalie’s tattoo and her refusal to remove it constituted misconduct as defined by § 59-9-5(b) N.M.S.A. 1953

Statement of Facts

Our client is Natalie Attired.  Natalie was denied unemployment compensation on the grounds that she was terminated for “misconduct”.  Natalie wishes to file a claim against NMESB for wrongfully withholding her unemployment compensation.

Natalie began employment with Biddy’s Tea House and Croissanterie in May, 2009.   During her employment, Natalie has received four evaluations, which improved consistently.  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.

Issues:

1.      Does Natalie’s refusal to remove her tattoo constitute misconduct under § 59-9-5(b)N.M.S.A. 1953?

2.      Can Ms. Baker provide proof that Natalie’s appearance negatively affected business as to cause reduced sales and profits?

3.      Were there any prior acts by Natalie in which the Totality of circumstances and the “last straw” doctrine would apply?

Brief Answer:

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 has no proof of a decline in sales or profits during Natalie’s employment.  However, patrons did register complaints regarding the tattoo. 

3.      No.  Natalie’s reviews have been primarily satisfactory and any specified “Areas for Development” or “Goals and Objectives” were addressed and resolved.

Analysis and Discussion:

Issue:

Does Natalie’s refusal to remove her tattoo constitute misconduct under § 59-9-5(b) N.M.S.A. 1953?

Rule Statement:

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;

Rule Explanation:

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 Samaritan Center, Inc., 1976 NM 555 P.2d 696

Rule Application:

There were no guidelines, written or otherwise, forbidding tattoos.  Natalie’s tattoo did not affect her ability to perform her duties nor was it a safety hazard.  Additionally, the cost for tattoo removal was prohibitively expensive when other alternatives (such as covering the tattoo with long sleeves or a bandage) were available.

Conclusion:

Natalie Attired’s refusal to remove a tattoo does not constitute misconduct under § 59-9-5(b) N.M.S.A. 1953?

Issue:

Can Ms. Baker provide proof that Natalie’s appearance negatively affected business as to cause reduced sales and profits?

Rule Statement:

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;

Rule Explanation:

In Burger Time, Inc. v. New Mexico Department of Labor, the court held that the employee’s hair color did not significantly affect business as to warrant misconduct.  It’s Burger Time, Inc. v. New Mexico Department of Labor Employment Security Department, Board of Review (In re Claim of Apodaca), 1989 769 P.2d 88.

Rule Application:

As in Burger Time, Inc. v. New Mexico Department of Labor, Ms. Baker was unable to provide any proof that Natalie’s change in appearance negatively affected business as to cause reduced sales and profits.   Although she did provide the names of two customers who complained of Natalie’s tattoo, two complaints combined in one event does not warrant termination.  As before, alternatives to the removal of the tattoo were available.

Conclusion:

Ms. Baker is unable to prove that Natalie’s tattoo substantially affected business.

Issue:

Were there any prior acts by Natalie in which the Totality of circumstances and the “last straw” doctrine would apply?

Rule Statement:

“Totality of Circumstances” or “Last Straw” doctrine is when a series of minor infractions are taken in totality.

Rule Explanation:

In such cases where the employee has committed several minor infractions over a period of time, the Totality of Circumstances or last straw could doctrine would apply constituting misconduct to the level in which the claimant would be disqualified from receiving unemployment benefits. Rodman v. New Mexico Employment Security Department, et al., 1988 NM 764 P.2d 1316

Rule Application:

In Rodman v. New Mexico Employment Security Department, the claimant had numerous, repeated violations for which she was reprimanded by the employer.  Following each reprimand, the claimant failed to resolve the issues.  In Natalie’s case, there were no such reprimands.  Any suggested improvements listed on otherwise satisfactory reviews were addressed and resolved.

Conclusion:

Because Natalie had no prior incidents in which she was reprimanded and all suggestions for improvement on her employer reviews were addressed and resolved, the Totality of Circumstances or Last Straw doctrine does not apply.