FROM: Chantay Stanley
DATE: May 7, 2013
RE: Attired v. New Mexico Employment Security Board (2010)
While working at Biddy’s, Ms. Attired got a tattoo, which was not covered by her uniform. Biddy Baker, her employer, did not approve of Ms. Attired’s tattoo and gave her the ultimatum to remove the tattoo or lose her job. Ms. Attired chose not to remove her tattoo and was fired. Ms. Attired was then disapproved for unemployment benefits because she was fired for misconduct. Biddy Baker claimed that Ms. Attired’s appearance caused a decline in sales, but she was not able to prove it. According to Claim of Apodaca, 108 N.M. 175, 769 P. 2d 88 (N.M. 1989) Ms. Attired did not commit misconduct and will have a good chance of winning her case.
Natalie Attired began working at Biddy’s in May of 2009. Biddy’s was owned by Biddy Baker. Mrs. Baker evaluated her employees performance every three months. There is no employee manual or written policy that the employees must follow. In June of 2010, Ms. Attired got a full-sleeved tattoo, which ]could be seen when she wore her short-sleeved uniform. Prior to getting the tattoo, Ms. Attired was warned by her co worker, who had been working at Biddy’s Baker for 10 years, to get the tattoo “where the sun don’t shine”. Mrs. Baker told Ms. Attired that if she did not remove her tattoo that she would be fired. Ms. Attired refused to remove the tattoo and Mrs. Baker then gave her a check and a termination notice. Mrs. Baker said that Ms. Attired’s tattoo caused a decline in sales; however, she was not able to show any proof of that. Ms. Attired then filed for unemployment in July of 2010 and was denied because she had been terminated for “misconduct”.
Did Ms. Attired’s behavior constitute “misconduct” and denial of benefits under New Mexico Statutes Annotated § 51-1-7?
According to Claim of Apodaca, 108 N.M. 175, 769 P. 2d 88 (N.M. 1989) an employee cannot be terminated because of a