Multi-State Payroll Withholding Issues And Potential Relief For Telecommuting Employees

The "shelter in place" or "stay-at-home" orders that numerous states have issued in response to the COVID-19 pandemic have prompted some employers to require that their employees work remotely from their homes. As states roll back these orders, some employers will continue to have employees telecommute as they prepare their return-to-work strategies. Working from home or telecommuting may create a business presence in a state that establishes nexus, obligating nonresident employers to withhold state and local payroll taxes. The telecommuting employees may also create sufficient nexus to establish that a nonresident employer is doing business in that state and is subject to state taxes such as corporate income tax, franchise tax, and sales and use tax, which is beyond the scope of this article. This article will focus on the state payroll tax issues created by telecommuting employees and the response of some state legislatures to provide employer state tax withholding