Hollinger 1 Running Head: Memorandum

Unit 8 Legal memorandum part 3 Dawn Hollinger Kaplan University

PA205-01 Professor Paige February 7, 12

Hollinger 2 Facts: Our client is Natalie Attired, she is 23 years old. She was employed at Biddys Tea House and Croissanterie in Truth or Consequences New Mexico. The tea house serves tea, sandwiches, scones, and desserts. There is no alcohol served in the establishment. Every three months Ms. Biddy Baker evaluates the wait staff. Ms. Baker has no employee manual or written policy about employee conduct. While Miss Attired worked for Ms. Baker, she received four evaluations. Over the course of those evaluations Natalie continued to improve upon the areas for development. When Natalie began working at the Tea House she informed a co-worker that her boyfriend wanted her to get a tattoo and she wanted one. The employee told her to get it where it couldnt be seen because Ms. Baker didnt like tattoos on her employees. Natalie got her half sleeve tattoo (formerly called a full sleeve although it isnt), which covered her from shoulder to elbow. The tattoo was mostly covered, except a portion near the elbow. Ms. Baker gave Natalie one option. In order to keep her job Natalie had to have the tattoo removed. Ms. Bakers reason for firing Natalie was that the more mature clientele didnt want to see tattoos and they would be disgusted by it. She stated that this would lead to a decline in business and therefore sales, but has not provided proof to uphold this statement. The only thing she could provide was two clients complaints about the tattoo, and that they moved to another girls section when sat in Natalies. Nata lie applied for Unemployment and was denied due to misconduct. Natalie wishes to file for wrongful withholding of unemployment compensation.

Hollinger 3 Issues: What constituted misconduct? Why wasnt there a handbook outlining what was expected from the employees? Why was Natalie not given the option to wear longer sleeves instead of just the option of tattoo removal? What law allows Ms. Baker to fire her employee for a tattoo under New Mexico state law?

Brief Answers: I would expect that this issue will be reversed in the appeals process. I believe the case law that best applies to this case would be 769 P. 2d 88 New Mexico 1989. Statute: We need to file the appeal citing the case law of 769 P. 2d 88 New Mexico 1989. Discussion: In the above case the term misconduct was defined as: [M]isconduct * * * is limited to conduct evincing such wilful or wanton disregard of an employers 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. * * * [M]ere 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. I believe Natalie falls under this definition because it was only an isolated incident in which she made a good faith error in judgment. She wasnt willfully negligent nor was it a continued recurrence. Also Ms. Baker could produce no real proof that her profits would fall, because after two comments by customers she fired

Hollinger 4 Natalie. Those same customers didnt leave after seeing the tattoo, instead they moved to another section. They were still patrons of the establishment and in no way did this reflect on the profits made. Conclusion: I believe Natalie was wrongly refused unemployment benefits. We have a solid case against the board and should be given unemployment upon appeal.