Nonresident NY Employees Are Not Currently Working at Home for Their ‘Convenience’

To the Editor:

After reading Ed Zelinsky’s characteristically thoughtful and persuasive article¹ in which he argues that Governor Andrew Cuomo (D) should announce that New York will cease taxing income earned at home by out-of-state telecommuters, I thought I would add a footnote suggesting that, for the moment at least, New York’s “convenience of the employer rule” is inapplicable, regardless of what Cuomo says. The rule provides that “any allowance claimed for days worked outside New York State must be based upon the performance of services which out of necessity, as distinguished from convenience, obligate the employee to out-of-state duties in the services of his employer.”² In my opinion, any employee (like Zelinsky) who is currently working at home outside New York for a New York employer, pursuant to the “shelter at home” advice associated with the coronavirus pandemic, may claim those days as “days worked outside of New York” under New York’s regulation. Indeed, to invoke my “gold standard” for the strength of a case, I would take Ed’s case on contingency, if New York challenged his counting of coronavirus-induced days working in Connecticut for Cardozo School of Law as non-New York days.

Walter Hellerstein