Natalie Attired worked at Biddy’s for one year when she was fired for getting a sleeve tattoo on her upper right arm. Natalie was fired because Ms. Biddy claimed that she her appearance was disturbing the clients while they were trying to eat. There is no employee manual or written policy about employee conduct. Natalie while for unemployment in July 2010 but was denied because she was terminated for “misconduct.” Biddy’s has been in for over 20 years and is run by Biddy Baker, age 60. Biddy evaluates her waitress’ performance every three months.
Was Natalie’s tattoo in fact a distraction to the customers in the restaurant? Were there any guidelines in place that would in fact tell Natalie that she was in violation of the dress code? Did Ms. Biddy talk to her employee about how she wants there to present themselves while at work? Brief Answers:
Two customers complained that Natalie’s tattoo was distracting. There were not any guidelines or employee handbook that stated was acceptable or not acceptable. Ms. Biddy did evaluate her employees every 3 months but in the evaluations she did not state how she wanted her employees to present themselves. Rules that Apply:
According to the New Mexico Statutes Annotated, § 51-1-7 § 51-1-7. Disqualification for benefits A. An individual shall be disqualified for and shall not be eligible to receive benefits: (1) if it is determined by the division that the individual left employment voluntarily without good cause in connection with the employment. However, a person shall not be denied benefits under this paragraph:
(2) if it is determined by the division that the individual has been discharged for misconduct connected with the individual’s employment. Also in 555 P.2d 696 Supreme Court of New Mexico. Zelma M. MITCHELL, Plaintiff-Appellee, v. LOVINGTON GOOD SAMARITAN CENTER, INC., Defendant-Appellant. No. 10847.Oct. 27, 1976. ‘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. Analysis:
According to the definition of misconduct as stated above Ms. Attried did not in fact get fired for misconduct she did in fact get fired because Ms. Biddy felt her tattoo was a hinder to her business. In Natalie’s evaluations she was evaluated as a good employee who just needed to learn a few things to get her job skills up to par. Nowhere is it stated that she did anything to make her employer have to take negative action against her. She was always on time for work, she was pleasant with the customers, and she usually gets all the orders. Conclusion:
Natalie was wrongly denied her unemployment benefits because she does not fit the criteria to be denied because of misconduct. She did perform her job to the best or her knowledge and there was no handbook to ensure that she was wrong about getting the tattoo. If Ms. Biddy wants her employees to conduct themselves a certain way she should provide guideline to ensure that they in fact know what is expected of them. Natalie should be able to receive her benefits and should have them backtracked to her original file date of unemployment.