Federal government is headed for a showdown with New York State over telework.

The government’s commitment to telework is firm. Aside from the Federal telework mandate (section 359 of Public Law 106-346), pending telework legislation includes the Small Business Telework Act and the Continuity of Operations Demonstration Project Act. The Department of Labor recently set aside $1 million to pilot using telework to employ disabled people.

In an unprecedented move, the House Appropriations Committee wrote into the 2005 Federal Appropriations Bill a $5 million penalty against executive agencies that can’t prove 100% of eligible employees have been offered telework within two months of it becoming law.   

The Departments of Commerce, Justice, the Judiciary, the Securities and Exchange Commission and the Small Business Administration will also need to submit quarterly program status reports to the Appropriations Committee, including the number of eligible and participating employees; and designate a telework coordinator to oversee the program and serve as Committee liaison. If they fail, $5 million will be set aside from each of their budgets until they comply.

“It seems inconsistent for the Federal government to take all these pro-telework measures, only to sit around and let states like New York undermine the capacity of those programs to deliver their intended benefits,” says Nicole Belson Goluboff, an attorney specializing in telework and author of The Law of Telecommuting.

Of course, New York State undermines telework by requiring non-resident teleworkers pay tax on 100% of their income, even if they’ve spent much or most of the year working in a home office.  (See “Fighting for fair telework tax,”  http://www.nwfusion.com/net.worker/news/2004/0607netlead.html)  - known as the “convenience rule.”

Specifically, the rule says New York will give non-resident teleworkers a tax credit for the taxes paid on the income earned while teleworking in their home state, but only when that work is done for the convenience of the employer, not of the employee. This means New York grants a credit only when the employer needed the employee to work out of state, but not when the employee worked at home casually, nor as part of a formal corporate telework program. Most teleworkers don’t meet this condition, and must pay taxes on 100% of their income to their home state as well as to their employer’s state, New York.