Natalie Attired Unemployment Compensation Claim

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.
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,...