National Telecommuting Institute Lawsuit alleges AbilityOne fails to ensure jobs go to people with severe disabilities

BOSTON, March 26, 2015 /PRNewswire-USNewswire/ -- Randall Love had been healthy until diagnosed with a rare spinal cord tumor in 2008. After a delicate surgery he spent months in rehab. He's much weaker now, has lost sensation over 60% of his body, and walks slowly and with great care. Still, he is a grateful man. "I can talk, I can think. And I can still contribute to my family through my job."

For another week anyway. Then Mr. Love and 15 of his severely disabled co-workers will be laid off so that their jobs can become part of the AbilityOne program, a federal program which was created to set aside jobs for people with severe disabilities.

The ironic nature of that outcome has become part of a lawsuit that was filed in the Court of Federal Claims on March 20, 2015  (Case No.: 1:15-cv-00293-TCW) against the AbilityOne program.  National Telecommuting Institute, (NTI) Mr. Love's nonprofit employer is accusing the federal program of failing to ensure that people with severe disabilities are really hired on its set aside jobs and of taking steps that benefit favored contractors at the expense of the people the program is supposed to help.     

For the last nine months Mr. Love has been a Tier 1 Help Desk Agent for the US Department of Agriculture. He works from home from 8:30 am to 3 p.m., using a computer, phone and headset, taking technical support calls from federal employees all over the country. He was hired by NTI, a nonprofit disability organization that trains and places people like him—people with physical disabilities that prevent them from commuting to a central office. As a subcontractor to a large company which currently performs the USDA Help Desk contract, NTI was able to fill 16 of the jobs and had hopes of filling many more. Randall's job not only lets him "enjoy the heck" out of life, but it also reduces his need for SSDI, the Social Security disability payments typically collected by someone in his situation All that will change on March 27th.

NTI has been given notice that the jobs will then go to Peckham, a disability organization in Lansing Michigan. Peckham is one of the largest contractors under the $2.8 billion dollar program and already has over 1,000 AbilityOne jobs. They want Mr. Love's job as well. 

NTI claims the evidence indicates Peckham  fills many of its jobs with people who have slight or no disabilities, even though the law requires that 75% of the AbilityOne jobs be filled by people with severe disabilities. NTI claims that fudging the numbers is easy because AbilityOne relies on the honor system. As long as a doctor's note is in a file indicating the job applicant has been treated for some type of mental or physical problem, then a contractor need only use their judgement that the applicant is so severely disabled that they are "not competitively employable". That is the standard required by law to be eligible for an AbilityOne job.

The effectiveness of the honor system was illustrated in 2011 when the CEO of NCED, another large SourceAmerica contractor was sentenced to 10 years in prison and fined $65 million dollars for embezzlement and lying about the make-up of his AbilityOne workforce. AbilityOne compliance officials had approved the CEO's assertion that 78% of their 4,000 sewing operators were severely disabled. It was only after the FBI raided NCED factories that they re-visited the contractor and decided that less than 8% were really disabled.

As laid out in the lawsuit, NTI and Peckham were both finalists for the USDA technical support jobs.  Both were considered acceptable by the USDA but the AbilityOne program then selected Peckham.  They did so despite NTI's claim that Mitch Tomlinson, CEO of Peckham  estimated that "less than 10%" of his existing workforce had been independently verified as severely disabled by the Social Security Administration. NTI's says that 88% of their home-based workforce have been verified as severely disabled by Social Security. AbilityOne also chose Peckham despite the fact that NTI already had home-based people with severe disabilities performing on the contract. These workers would inevitably be laid off in order to transfer the jobs to Peckham.

"Suing the government was a tough decision," says MJ Willard, Executive Director of NTI, "but there is something seriously wrong in how the AbilityOne program is operating". She points to a September 2014 lawsuit by Bona Fide, another nonprofit disability organization that filed an anti-trust lawsuit against the AbilityOne's advisor, SourceAmerica in the United States District Court for the Southern District of California (Case No.: 14cv0751 GPC (DHB). Bona Fide alleges that a cartel consisting of the largest contractors influence the award decisions to the degree that 80% of the $2.8 billion dollars in federal contracts have gone to the 20 largest contractors.This is despite their being over 500 nonprofits eager to employ people with disabilities in their communities.      

Willard still hopes to win the USDA work. It is a rare opportunity, as it permits the use of home-based agents, exactly the kind NTI works with. When fully staffed, the USDA contract could yield 200-300 jobs for the kind of people AbilityOne is supposed to serve. "For that, we're willing to fight," Willard says.

Randall Love and his fellow workers hope NTI wins. They'd like their jobs back.

Contact: MJ Willard, Executive Director, NTI (415) 302-3627
              Alan Hubbard, Chief Operating Officer, NTI (617) 787-4426 Ext. 307

SOURCE National Telecommuting Institute