(A) Statement of the facts: Natalie Attired was employed at Biddy’s Teahouse Restaurant, owned by Biddy Baker age 60. Biddy’s has been in business for 20 years, no alcohol is served there. After being employed for three months, Attired purchased a full sleeve tattoo that covered her entire upper right arm. The tattoo was partially covered by her uniform, but the lower portion near the elbow was exposed. Baker was upset at the change in Attired’s physical appearance. Attired was immediately told by Baker to remove the tattoo or she would be terminated. Attired failed to remove the tattoo, she worked at Biddy’s for the rest of the week and was given a termination notice. Baker said her customers would be “appalled and disgusted” and this would lead to a decline in profits. Baker was unable to provide any proof that Attired’s tattoo actually caused the restaurant to lose money. Attired’s job performance had been evaluated every three months. There were a total of four evaluations, only one had an unfavorable remark. The Dec 2009-Feb 2010 evaluation said that Attired was told that it is not alright to call a customer a name because he did not leave you a tip. There is no employee manual or written policy about employee conduct. Attired applied but was denied unemployment benefits under the grounds that she was guilty of employee misconduct.
(B) At issue in this case is whether an employee who refuses to alter her personal appearance in conformity with the employer’s personal beliefs about acceptable community standards has engaged in misconduct under 59-9- 5 (b). N.M.S.A. 1953
(C) The rule of the law: Misconduct as defined in both the Alonso v New Mexico Employment Security Department and Apodaca v. It’s Burger time Inc. is “limited to conduct evincing such willful or wanton disregard of an employer’s interests as is found in deliberate violations or disregard of