TO: Professor Pruitt
FROM: Bjorn R Nelson
DATE: 7/11/2012
SUBJECT: Natalie Attired Unemployment Compensation Claim.
STATEMENT OF FACTS
Natalie Attired has presented to our office for representation regarding her recent unemployment insurance denial. Biddy’s Tea House and Croissanterie in Truth or Consequences, NM employed Natalie Attired. From May 2009 until June 2010 Natalie has received four evaluations, which improved consistently. In June 2010, Natalie Attired received a sleeve tattoo, which covered her entire right upper arm, extending from her right deltoid to her right elbow. Her assigned work uniform covered the majority of the tattoo, although the lower portion of the tattoo remains visible. Prior to getting the tattoo Natalie Attired spoke with a tenured employee whom advised her to “get it were the sun don’t shine” implying she would be fired if she had got a visible tattoo. Biddy Baker fired Natalie Attired on the grounds of misconduct after giving Natalie Attired notice to have the tattoo removed. To date Biddy Baker does not have an employee handbook or any other form of written policy or procedure. Biddy Baker believes she has suffered a reduction in profits, although has not presented proof at this time, and states that two longtime patrons have expressed a distaste for Natalie Attired’s tattoo, stating “who wants to look at that when your eating.” Natalie Attired applied for unemployment compensation and was denied by the New Mexico Employment Security Board.
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ISSUES/QUESTIONS PRESENTED
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 ANSWERS
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.
APPLICABLE STATUTE/RULE
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. 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
ANALYSIS/DISCUSSION
Does Natalie’s refusal to remove her tattoo constitute misconduct under § 59-9-5(b) N.M.S.A. 1953?
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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;
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.
Natalie Attired’s refusal to remove a tattoo does not constitute misconduct under § 59-9-5(b) N.M.S.A. 1953?
Can Ms. Baker provide proof that Natalie’s appearance negatively affected business as to cause reduced sales and profits?
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.
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.
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.
Ms. Baker is unable to prove that Natalie’s tattoo substantially affected business.
Were there any prior acts by Natalie in which the Totality of circumstances and the “last straw” doctrine would apply?
“Totality of Circumstances” or “Last Straw” doctrine is when a series of minor infractions are taken in totality.
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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
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.
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.
Conclusion
Natalie Attired’s refusal to remove a tattoo does not constitute misconduct under § 59-9-5(b) N.M.S.A. 1953. Ms. Baker is unable to prove that Natalie’s tattoo substantially affected business. 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.
