Jottings By An Employer's Lawyer

Wednesday, July 02, 2003

Unemployment Compensation for the Telecommuter - What State?


Telecommuting, a concept that seems more talked about than acted on, does have novel problems. When a telecommuter living (and thus working) in Florida, for a New York based company wants to file for unemployment, which state will pay? Maybe neither. At least that's what happened to a Reuters employee. The AP Wire has the story on the decision by the New York top court upholding the denial of her benefits, saying under New York law it is the place of the employee, not the employer that controls for unemployment. The reason she applied in New York was that she had earlier been turned down by Florida.

To make matters worse, according to the opinion in Allen v. Commissioner of Labor, Allen who represented herself, is required to repay the amounts she received in unemployment from New York because she made a "false statement" when she said that she worked at the New York address of her employer. Even "unintentional" false statements, which is how the court apparently viewed this one, require repayment.

Although this particular fact situation is not very appealing, the Court noted it was deciding a case of first impression and was interpreting its statute which is based on a uniform statute, so it is similar to those adopted by other states in an effort to ensure uniformity. The definition in the statute puts the emphasis on the locality of the work with the reasoning being that the state where the employee is physically present to obtain new work should pay. Even the Court concedes that the idea of an interstate telecommuter was never contemplated when the unemployment laws were drafted, but at least in its view, the principles articulated there still work. Ms. Allen no doubt would beg to differ.


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