By Edward Zelinsky
The swine flu is back. Gerald Ford was president the last time Americans confronted the swine flu. In response to the current emergence of this disease, public health authorities advise us to take precautions including the avoidance of crowds and of unnecessary travel. For many Americans, the most significant exposure to the danger of communicable disease occurs at the workplace.
While this workplace-based exposure cannot be eliminated, it can be minimized. To combat swine flu, we should encourage employees to telecommute from their homes rather than travel to their employers’ offices with their attendant danger of communicable disease.
Modern technologies – the internet, email, cell phones, electronic data bases – enable many employees to work from their homes for at least part of the week. Telecommuting extends job opportunities to individuals for whom traditional commuting is difficult, for example, the disabled, parents of small children, persons who live far from major employment centers. Telecommuting is also good for the environment, reducing the carbon footprints of employees who spend some of their work days at home and need not physically commute to work on those days.
Now, telecommuting can achieve yet another important benefit by reducing individuals’ potential exposure to swine flu on the days they work at home rather than travel to their employers’ offices.
A major impediment to telecommuting is New York State’s extraterritorial taxation of nonresidents’ incomes. When a nonresident works at home for a New York employer, New York imposes income tax on the telecommuting nonresident for this out-of-state day even though the nonresident never sets foot in New York on that day and even though New York provides no public services to the nonresident telecommuter on his day working at his out-of-state home. The result of New York’s extraterritorial taxation is typically double income taxation of the nonresident for telecommuting from outside the Empire State, a classic confirmation that no good deed goes unpunished.
I am something of a poster boy for the irrationality of New York’s extraterritorial taxation of nonresident telecommuters. I am a law professor in Manhattan at the Benjamin N. Cardozo School of Law of Yeshiva University. I live in New Haven, Connecticut. When New York sought to impose its income tax on me for the days I wrote and researched at home in Connecticut, I challenged this extraterritorial tax on constitutional grounds. Virtually all independent legal commentators concluded that this challenge should have prevailed since the Due Process and Commerce Clauses of the U.S. Constitution prevent the states from taxing activity which occurs outside their respective borders.
Nevertheless, despite these constitutional principles, New York’s courts held that New York can tax me (and other telecommuters) on days worked at home outside the Empire State. New York’s Court of Appeals, that state’s highest court, specifically approved New York’s tax-based discouragement of nonresidents’ telecommuting from their out-of-state homes.
Enter the swine flu.
For the duration of swine flu problem, New York should encourage telecommuting or at least not impede it. In particular, New York Governor David Paterson should announce that, to stimulate telecommuting to combat potential exposure to the new swine flu, New York will suspend its extraterritorial income taxation of nonresidents for all days such nonresidents work at their out-of-state homes.
In any event, Congress should pass the Telecommuter Tax Fairness Act which, if enacted into law, would prevent states from taxing telecommuting nonresidents on the days they work at their out-of-state homes.
And who knows? After the swine flu danger is over, Governor Paterson and New York’s other policymakers may discover the long-term benefits to New York of reforming permanently New York’s extraterritorial (and unconstitutional) taxation of telecommuters like me.
Edward A. Zelinsky 
is the Morris and Annie Trachman Professor of Law at the
Benjamin N. Cardozo School of Law of Yeshiva University. He is the author of
The Origins of the Ownership Society: How The Defined Contribution Paradigm Changed America.
Edward A. Zelinsky is the Morris and Annie Trachman Professor of Law at the Benjamin N. Cardozo School of Law of Yeshiva University. He is the author of The Origins of the Ownership Society: How The Defined Contribution Paradigm Changed America. In this article, Professor Zelinsky criticizes New York’s “convenience of the employer” doctrine for double taxing telecommuters at a time when public policy should be encouraging, rather than hindering, telecommuting. He calls on Congress to pass the Telecommuter Tax Fairness Act to stop such double taxation. Read his past OUPblog posts here.
A gallon of gas today costs $4.00 or more in most parts of the country. The public is concerned, as perhaps never before, about the impact of human activity on the global environment. In this setting, telecommuting has emerged as an environmentally sensitive and economically sensible lifestyle.
By permitting individuals to work at home for part (often much)
of the work week, telecommuting removes telecommuters’ cars from the roads, thereby reducing traffic congestion, gas consumption, and automotive pollution. Telecommuting from home also opens job opportunities for persons for whom a conventional, daily trip to the work place is difficult or undesirable – parents’ of small children, disabled individuals, persons who live far from major employment centers. Telecommuting allows employers to hire these individuals who might otherwise withdraw from the labor force.
For all of these reasons, public policy should encourage, or at least not hinder, the growth of telecommuting. Unfortunately, the tax policies of the State of New York discourage telecommuting by double taxing out-of-state individuals who telecommute for New York employers from their out-of-state homes. In particular, New York’s so-called “convenience of the employer” rule imposes nonresident New York income taxes on out-of-state telecommuters on the days they work at home, often hundreds – if not thousands – of miles from New York.
Consider, for example, the recent case of Mr. R. Michael Holt, a human resources compensation consultant who lives in Naples, Florida. In 1999, Mr. Holt worked at his home in Florida for the New York offices of KPMG, LLP and William M. Mercer, Inc. Under the employer convenience rule, New York imposed nonresident income taxes upon Mr. Holt for the income he earned working at home in the Sunshine State, thousands of miles from New York.
When the state in which a telecommuter lives also imposes an income tax, the result of New York’s tax policy is double taxation as the out-of-state telecommuter who works at home must pay tax both to New York and to the state in which she lives. The result is an unfair and inefficient tax penalty for telecommuting, namely, the double taxation of the income earned by the telecommuter on the days she works at her out-of-state home.
New York’s policy is bad, not only for out-of-state persons who telecommute to the Empire State, but potentially for telecommuters throughout the nation and for the employers who employ such telecommuters. If New York can get away with double taxing out-of-state telecommuters, other states will be tempted to emulate New York and likewise tax nonresident telecommuters who work at their out-of-state homes. The upshot will thus be double taxation of telecommuters nationwide when public policy should instead be supporting telecommuting.
Unfortunately, New York’s courts have refused to stop New York’s double taxation of nonresident telecommuters on the days such telecommuters work at their out-of-state homes. In Huckaby v. Tax Appeals Tribunal, New York’s highest court, by a narrow but decisive margin of 4-3, upheld New York’s income taxation of Thomas Huckaby on the days Mr. Huckaby worked at his home in Nashville, Tennessee.
Pending in Congress is legislation which would prevent New York and other states from using the “convenience of the employer” doctrine or any similar artifice to double tax nonresident telecommuters on the days they work at their out-of-state homes. The Telecommuter Tax Fairness Act has attracted bi-partisan support from members of Congress who recognize the importance of telecommuting-friendly public policy.
It is unreasonable for New York to punish telecommuting by double taxing workers who telecommute for New York employers from their out-of-state homes, particularly at a time when sound public policy should encourage telecommuting. There is, however, no sign that New York will alter its irrational “convenience of the employer” rule. Congress should accordingly adopt the Telecommuter Tax Fairness Act to eliminate the ability of New York and other states to double tax nonresident telecommuters on the days they work at their out-of-state homes.
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Or maybe I should have titled this Not Bothering to Ask an Agent Questions . . .
As you've been talking a bit about questions clients ask of agents...
Would you be upset if a potential client signed up with you WITHOUT asking any questions? I've done my research, I know which agents I want, and if one of them asks me to be a client, I'd sign immediately (unless I had other agents waiting--of course I'd contact them first and withdraw consideration). Anyway, if an agent offers a contract, I don't really think I'm going to ask that many questions. Would that actually put you off a bit?
In fact I have had a couple of clients sign without asking any questions and it didn’t concern me at all.
BookEnds has a very public profile. With the blog, the Web site, membership in RWA, AAR, and MWA, and attendance at close to 20 conferences a year, it’s not hard to meet one of us personally or find out a lot about us by asking around. Therefore, if you’ve done your research and know what you want, feel free to sign. I only have one question that I’d ask you: While you might know the agent’s reputation, do you know whether or not you’d work well together?
Remember, the true goal when finding an agent is not just to find someone reputable, but to find someone who you feel can really work the best for you and your career, and as all agents can attest to, what is right for one author might not be right for another. And that’s why I would encourage you to ask at least some questions, to get a feel for whether or not you think the relationship is one that would work.
Let’s ask the readers, though. For those of you who signed without asking questions, what sort of knowledge did you have of the agent to make the decision comfortable for you? And for others, what suggestions do you have for trying to figure out if the relationship is right?
Jessica
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Let's assume most people aren't going to get multiple offers. Most people will choose Agent A over remaining unagented and virtually invisible to publishers.
If you did your homework before you queried (as opposed to hitting on every agent in business), you should have already weeded out the scam artists (fee chargers who have never sold a book, etc.) and the legitimate agents who turn you off (some avoid the "I'll get back to you if I feel like it" agents, while I personally didn't care for the "I expect my clients to arrange their lives around my demands" guy), so Agent A should be a safe enough choice.
Only in the rare case of multiple offers can one afford to get picky about getting along smashingly.
I think that if you do your research and have met the person. Met them, then there is no reason to ask questions.
I get see Jessica once a year.
And have for probably the last fivr or so. We've chatted even when I haven't pitched.
If she took me on, I wouldn't have to ask questions.
But I haven't had the chance to meet that many other agents on that regular a basis.
I'd be on the phone for awhile if it were someone else.
cmr
I've had two agencies. The first one represented a suspense about some ruthless owners killing champion cutting horses for insurance money. We had a long phone conversation before I signed and they asked me, among other things, if I had anything else in the works. I suspect they were far more interested in the historical fiction I was working on than DANCING HORSES due to some later incidents.
The second agent repped THERE'S A MOOSE ON THE LOOSE, a children's book. I dearly loved her and we got along very well. She simply couldn't find a home for the book. It wasn't for lack of trying and, given the chance again, I would sign with her in a New York Minute.
With both I had conversations. Even with a careful search for an agent there are simply some things a person can only find out by asking. The agents also asked me questions. I would hope a prospective agent would want to know if I am a one-trick pony or if we can, hopefully, look forward to a long relationship.
I'm a horse trader so I'm used to picking up feet, checking teeth, feeling a horse, checking under the tail, etc. to make sure I know what I'm buying.
I'm not going to be checking an agent's teeth, but I would like to know what they expect of me and what I can expect of them. I also want some kind of connection with them. I wouldn't get along well with an agent who told me not to call them and they will not be calling me. I want them to have the best product I can give them and the only way to do that is through communication. I'm not going to be calling them to chat and I don't expect them to call and just shoot the bull, but I do expect communication.
Of course, I'm getting older so I may not be as picky as I once was. I guess we'll see when the prom gets closer.
My first question would be "Do you mind if I cry right now?"|
"My first question would be "Do you mind if I cry right now?"|"
Phffft, that's when you put them on hold for a moment and scream loud enough to bring the SWAT team.
I kid. I probably wouldn't bother to put them on hold.
"Only in the rare case of multiple offers can one afford to get picky about getting along smashingly."
I've said it before and I'll say it again - you could have a dozen offers of representation and still not have found the right agent for you.
But it is difficult to know if you're making the right choice, in large part because it can be hard to know what you, individually, will need from an agent if you've never worked with one before. I would suggest looking at the kind of relationships you have with other people you trust with things that are important to you - child care provider, financial planner, whatever. Do you want all the details from these people, or is a broad overview all you require? When you need to talk, do you prefer in person, phone, or email? How often do you want to touch base with them? Taking a look at those relationships can give you a clue as to what factors to consider when looking for your agent.
kris
I knew a lot about my agent before I signed with her, so I didn't have many questions. What I wanted to know most, was what she expected from me and what working with her would be like.
Of course it also helped that I pitched her at a conference, and got to see her "in action" at several workshops, and we talked on the phone when she call to offer me representation. I felt that we clicked, I loved her energy, so I didn't need much more than that to say "sign me up!"
I still say ask all the questions in the world and it won't matter. They manner in which people (writers and agents alike) give lively/positive/fawning answers on the phone when they're trying to nab you and the manner in which they conduct themselves on a day to day basis once you are their client can be VERY different.
You don't really know until you're in it, if it's going to work out. I'm on my second agent, this one is a keeper.
I don't think I asked any questions when Jessica called. I do distinctly remember her asking if I had any, but between the blog, having seen her speak at a couple of conferences, and having met with her at a pitch session, I really didn't have any questions left.
Now, I have to get off the blog and call Jessica to ask her some questions.
Julie--this is off topic, but I wanted to tell you that There's a Moose on the Loose! was a favorite of both my kids when they were little! I used to have the thing memorized, in fact--there's a moose on the loose and a bad-tempered goose, and a pig who is big....right? What a pleasure to run across you and let you know how much we enjoyed your (now very tattered) book. Thank you!!
Yes, anonymous, they can give you any answer they want. But I look at it like calling different daycares. You can tell by their answers or how they conduct themselves (or by their sales) how they operate. What they are really like.
I also think you can tell over the phone if their personality meshes well with yours. Especially if you are interviewing more than one agent...if only one agent is promising you the moon, then maybe be suspect of their intentions and promises.
Absolute Writer is a great place to find discussion about individual agents. There are many resources online nowadays to use in order to learn more about agents and how they conduct business.
BookEnds was brand new when I signed with Jessica. I had queried her on the recommendation of a fellow writer I admired tremendously (and still do!)but I knew nothing about her or her agency. When she called to offer representation, I felt we did well together over the phone, but the clincher for me was the contract she sent. I read it and it made sense--my gut reaction was that any agency with a contract as straightforward as theirs had to be someone I could trust. FWIW, Jessica wasn't able to sell that first manuscript so many years ago, but she's more than redeemed herself! :-)
I also did my research and knew a lot about Jessica before querying. So, I didn't have any questions about her public profile. Still, when you get that call from an agent, it's a good idea to have a conversation about how you'd like to work together. Those are the kind of questions I asked.
For example, the manuscript I'd sent was a paranormal, but I also want to write mysteries. So we talked about that. We talked about things specific to The Accidental Demon Slayer, and that series too. Basically, even if you know you're going to say "yes, yes, yes!" why not take the time to talk about how you'd work together?
Great post, Jessica.
I think the key to finding the right agent is to do the research. Research what is realistic in an agent/author relationship. Then realize that no matter what is realistic, agents come in all shapes and sizes. Some offer one service and another wouldn’t think of offering that service. I personally think the best agent is the one whose services reflect the needs of the client. But every agent will have their own limits and methods of doing business.
And it’s so true, what makes this all that much harder, is most of us won’t know what services we will need or what we will want until we get to the place where we need and want it. I’ve had two agents, and I have been in this business for 20 years, but I’m still learning how things work. That’s why it’s so important to have an agent with whom your personality meshes. You need to find one that you feel is your champion and understands what you want in the business.
And yes, agents can give you any answer they want when you question them. But by asking questions, both of the agent and of people who know her/him, you can figure out a little bit of how they operate and about how they come off. This is a business, however, whether you want it to be or not, personalities come into play. And if your agent’s personality isn’t compatible with yours, or vise versa, then it won’t make a good mix.
When I signed with Kim, I had several recommendations. Even then I really didn’t know her, but I felt comfortable talking to her. She didn’t scare me and I scare easily. Though I may have scared her. (smile) We still had to learn each others’ personalities…and she’s promised me that as soon as she’s figured me out that she will let me know because I’m still trying to do that myself.
But seriously, while we all know how desperate many authors feel about finding an agent, and how easy it is to jump at the first opportunity you get to sign with any agent, it is wise to think before you leap. An agent/author relationship is a marriage. And saying yes, just because you feel desperate, may not be wise.
CC
I am one of those who didn't ask many questions when my agent, Jacky, offered representation. It was kind of cool because I certainly knew a lot about her when I'd queried her -- there was no question about her qualifications -- and then after she'd looked at the proposal, she emailed on a Friday to say that she was considering offering representation and promised to be in touch on the following Monday. That was perfect because it gave me time to think very seriously about her and some other people who'd expressed interest over the weekend. By Monday I knew that if she offered I wanted to go with her -- the only information I needed at that point was to see how I felt about her personally when I "met her" on the phone -- and that was the best part of all, of course, because when I spoke with her I knew she shared my vision for the book and she knew exactly what I was trying to achieve with it. That was great, but also I really liked that she was so natural and straightforward. I knew she would be perfect for me within the first 5 minutes of our conversation. And plus as I recall, she answered all my questions even before I could ask them -- contract stuff, publisher stuff and all that.
I think part of the problem with asking questions, if you're seeking your first agent, is that you don't know what will come up, how you will interact with your agent, after the first book is signed.
Nowadays, newbie writers are aware that the Intertubes can give you a lot of information about some agents and their reptuations, but the dealings you may have after the first contract signing are pretty much a closed book.
It seems the most important part of the relationship -- how you get along -- can only be experienced, not questioned. You can't very well ask, "Are you not going to give me the information I need?" "Are you not going to tell me who you sent the manuscript to?" "Are you going to resent my suggestions about the cover?" "Are you not going to call me when you promised?"
Geeze, this is starting to sound like dating.
The first time I spoke to my agent we discussed revisions and every single one of her suggestions was so spot on I felt a little silly for having not thought of it in the first place.:) The fact that she connected with my work so perfectly, was reason enough for me to sign with her. Over a year later, I'm still a happy camper.:)
I want to thank all of you for such valuable information. I don't see any comments directed toward people like me who would probably become babbling idiots.
Agent: Hi, This is Dave from such and such, I would like to offer you representation.
Me: Hmmmphen Gloob.
Agent: Excuse me?
Me: Sigh, Ischtechenary schlumunchen.
Agent: Can you put your dad on little boy?
Me: Thizzle Meeeasssso.
Myself, as far as how I search for agents, I do tend to do my research, and have been fortunate enough to meet several of the agents I have on my "top list" at conferences, so I have a general idea of what they're like.
So the kinds of questions I would ask would be off the wall stuff, like whether they preferred Star Wars or Star Trek, or what kind of candy bars they liked.
That is, of course, if I could speak at all. :)
Hey, whisper:
Agent: Hi, This is Dave from such and such, I would like to offer you representation.
Me: Hmmmphen Gloob.
Agent: Excuse me?
Me: Sigh, Ischtechenary schlumunchen.
This is priceless! Thanks for a much-needed laugh today.
This is a good question, and one I have been thinking a lot about lately.
I, like most people, deal with lots of professionals. I have an accountant, a lawyer, multiple doctors, a dentist etc.
I am very astute about finding really good quality people. And what I mean by that, is that they are really, really good at what they do. I tend to deal with them for very long periods of time, and it grieves me when for some reason I have to replace them.
What is also absolutely fundamental to me, is that they at least seem like people who know how to lead a decent life. And lastly, and I know this might seem a bit sad here, but I have to like them.
At this stage of my life, I have no need of an agent. I hope this changes. But what I will be looking for when I do need an agent is not just a professional, but a likable person.
"You don't really know until you're in it, if it's going to work out. I'm on my second agent, this one is a keeper."
I totally agree. Writers can get all the answers they need by phone, but when the actual marriage "work" begins, you'll learn if it's for the long term or if a divorce is in the near future.
Met my agent at a conference. Met 3 others there, too. In the journal I kept I had notes about how well she and I connected - moreso than I did with the others - how well she "got" my work (based on her questions to me). So, when she offered, I accepted immediately, because I knew she was the one. It has been as great of a fit as I thought it would be.
Anon 10:39;
I wish I could take credit for that, really I do, but my Moose was written a few years before that and never saw the light of day. Sheesh, publishers.
At least now I know I had a great title.
Wonder if there's any market for title writers?
I would like to think I would be cool, calm and collected if an agent called to say they want to rep me. I would try very hard to put on my professional writer face.
However, when I won a $10,000 race horse I was screaming and jumping around like an idiot.
I would ask some serious questions after someone revived me or pulled me off the ceiling. I want the agent to tell me what I need to do to make the work better. What do they expect from me? What can I realistically expect from them? How do they want to communicate?
I've already had the agent who told me how perfect I was. Been there, done that, bought the tee shirt. I just want a no nonsense appraisal of what we need to do.
Haven't signed with anyone yet, but I have a list. This list contains agents I've researched for years. Its by order of preference. These are agents I've researched, watched their sales and read other author's opinions of them.
Bookends is there and towards the top...okay, after meeting you and coming to know you through your blog you'd probably be the top now. Bumping my perpetual fav (Mr. A) out lately. When I met you and heard you speak you were very much a real person. No pretense, not a phony, not a fluff. I got the feeling you'd be a straight shooter and wouldn't sign me unless you felt you could sell the book.
However if several agents called and asked me to, could they change my mind? Hmmmm, would that I could be so lucky as to be fought over.
Going to go daydream now....
Thank you all for such insightful comments and advice, and thank you, Jessica, for bringing up the topic.
The first time my agent called it was to chat and see what I was like -- not to offer representation- (she was in the middle of reading my novel and was loving it) We hit it off right away. When she called to offer representation I asked how much communication she wanted i.e. how often I could ask her questions etc as I knew things would come up- I also asked questions about how she liked to work with authors (closely or at a distance) --
I hear about people who are hesitant to call or email their agent- or who are slightly afraid of them...I knew it didn't want that.
Orion;
Bingo. I don't want to chat all the time with my agent. I want them to be able to work on my project and their other ones. I just want to know what their preferences are, so I know what to expect. I also want them to know what to expect from me. It needs to be a healthy, working relationship for me.
One woman admits she is afraid of her agent and they very seldom have any contact, which suits her fine.
Sorry, I don't want to be afraid of my agent. Slightly in awe, is acceptable. Afraid? Not so much.
I like Angie Fox's reply. I don't have an agent, but I have sold an unagented manuscript, and during the process I had good conversations with my editor, talking about the project and figuring out what role we could both play in it. It's not like an interview, drilling/grilling to find the right answer, but to feel out how you're going to approach this business relationship. I'd done my research, and there was really no question as to whether I was going to accept--but I got a sense of what the editor liked about the book, how he would promote it, what his vision of it was, etc. I wasn't looking for certain "correct" answers. I just wouldn't do it without a little conversation.
No, I think I agree with Anonymous here. Kristin brought up daycares, so I'll bring up schools. We've put our children in their fourth school so far and, really, it shouldn't have been this difficult. Neither my husband nor I are idiots.
However, between the smiling principals and vice-principals, the charts that show how popular the school is, the written policies on bullying and verbal policies on curriculum (later recanted), the PowerPoint presentations from teachers on what's been achieved during the year, the time pressure ("or you'll have to go on the waiting list, I'm afraid"), and the blinding need to Do The Right Thing for our children, we still screwed up. Three times. We're still waiting to see if the fourth time "takes".
Unfortunately, I'm swiftly coming to the conclusion that the proof is only in the eating, and all the whipped cream and sniffing beforehand can't preclude a lingering bad taste.
For a moment, I couldn't even remember my first conversation with my agent (the oh so amazing Jessica Faust) and then it all came back to me like remembering eating a really good piece of cheesecake.
You know you have you'll have a good relationship with an agent when:
-You're scared - and they make that okay
-You're nervous - and they make that go away
-You forget to breathe- and they remind you
-You suddenly forget how to speak and they let you sit there in silence until it all comes back you
I hadn't researched agents at all when I got the call. I didn't even know what to ask, but I found out fast. I hope I asked the right questions and I can say that it was by far the best decision I've made so far for my career. There is nothing more important than having someone you can really TRUST in your corner- I got that in spades with Jessica.
Because I have such a great relationship with my agent I can definitely see how having a bad one could cripple you as a writer. So it's best to ask all the questions you can and really pay attention to the answers. Granted there are some questions you can answer through research but here's one you can't:
What, realistically, do you imagine for my career and how would do we get there?
ASIDE: I know I didn't ask her that question. I was too busy trying not to faint!