From: Arisleyda Bonetti
Date: February 16, 2015
Re: Our new client Natalie Attired; denial of unemployment benefits for alleged misconduct
FACTS Natalie Attired would like to know if she has a claim against the NMESB for wrongfully withholding her unemployment benefits. Ms. Attired was employed with Biddy’s Tea House and Croissanterie. Ms. Biddy evaluated the waitresses’ performance every three months, and received four evaluations while she worked there. Also there was no employee manual or written policy about the employee’s. After three month Ms. Attired got a full-sleeve tattoo, which was partially covered by her uniform. She was terminated after Ms. Biddy ask her to have her tattoo removed.
QUESTION PRESENTED: Natalie Attired would like to know if she has a claim against the NMESB for wrongfully withholding her unemployment compensation.
BRIEF ANSWER Yes, Natalie Attired will probably have a claim against the NMESB because there is no employee manual, and the employer has to prove that Ms. Attired constituted misconduct.
APPLICABLE STATUTE : N.M. Stat. Ann. § 51-1-7 (West, 2012) “[A]n individual shall be disqualified for and shall not be eligible to receive benefits: (2) if it is determined by the division that the individual has been discharged for misconduct connected with the individual’s employment.”
DISCUSSION: The issue presented is whether Ms. Attired’s behavior is seen as “misconduct,” and so excluding her from unemployment benefits under N.M. STAT. ANN. § 51-1-7 (West, 2012). Mitchell v. Lovington Good Samaritan Center, 555 P. 2d 696 (New Mexico, 1976). In Mitchell, an employee’s actions constitute misconduct when the employee shows a willful disregard of the employer’s interest, which includes disobedience, inappropriate clothing, name calling to other co-workers, and other behavior.
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