Federal Investigation Probing ACCES-VR for Alleged Overtime Violations

Workers for Disability Jobs Program Claim They Sometimes ‘Work for Free’

This is the fourth installment in a series exploring issues impacting people with disabilities.

By Adam Stone

Regular readers of this column know I’ve dedicated a considerable amount of space in recent months to reporting on the chronic problems at ACCES-VR, a state agency designed to help people with disabilities secure jobs and build careers.

A pair of pieces explored how the organization’s failings created massive service and communication issues.

Drastically understaffed in the White Plains district office and across New York, some counselors maintain caseloads far exceeding 300 individuals, the investigation found.

Local people with disabilities and their families told me about their frustration in trying to get the attention of overwhelmed vocational rehabilitation counselors, unable to secure basic services or even simple e-mail replies.

But it turns out the people working inside the agency are just as aggravated as the people seeking the agency’s help.

I’d been hearing whispers in recent weeks about alleged violations of overtime rules by ACCES-VR, an agency run through the New York State Education Department, commonly referred to as SED. (ACCES-VR stands for Adult Career and Continuing Education Services-Vocational Rehabilitation.)

Sources told me about a possible federal investigation launched earlier this year.

After poking around a bit on that charge, I was able to confirm that, yes, the U.S. Department of Labor’s Wage and Hour Division did in fact launch an investigation of ACCES-VR.

“It is ongoing,” the division’s Regional Director for Public Affairs Ted Fitzgerald acknowledged to me on Wednesday.

The division does not discuss the specifics of open investigations, Fitzgerald also said.

Fair Labor 

A senior spokesperson for New York, New England, Puerto Rico and the U.S. Virgin Islands, Fitzgerald stated that investigations such as this one seek to determine if the agency is “in compliance with the Fair Labor Standards Act or other laws enforced by the division.”

The Fair Labor Standards Act, among other things, establishes rules about overtime pay for private and public sector employees.

“Overtime pay at a rate not less than one and one-half times the regular rate of pay is required after 40 hours of work in a workweek,” the Wage and Hour Division dictates.

As for investigative protocol, these types of inquiries usually begin as a result of complaints by workers.

In terms of potential remedies, there is a chance that ACCES-VR employees could recover lost wages, depending on the investigation’s findings.

The Fair Labor Standards Act, or FLSA, grants the Department of Labor the power to secure unpaid wages and liquidated damages for workers.

While the duration of investigations can vary greatly, from what I can gather it appears as if we’ll very possibly know more about the inquiry’s conclusions before or by this winter.

“I can’t provide a hard figure but suggest checking back in a few months,” Fitzgerald said.

An investigator with the Department of Labor’s Syracuse office first contacted union officials in May, a New York State Public Employees Federation source shared with me.

“I believe I was one of the first people [the investigator] interviewed, so I think it is fair to say the investigation started around then,” the union official said.

‘Work for Free’

Needless to say, it’s most critical to hear from the horse’s mouth for a story like this, and I’ve been collecting dribs and drabs from dissatisfied ACCESS-VR workers (past and present) from across the state ever since my coverage first published two months ago.

One especially helpful source currently works as a supervisor at ACCES-VR, and requested anonymity out of fear of reprisal.

The source said it’s simply impossible for employees to complete their tasks within a normal workday, given the volume of vacancies as well as a failure by the state to create needed new positions.

“We cannot get the job done in seven-and-a-half hours [so] we are left doing no-pay overtime,” the source said.

Workers did alert the union about the issues but management “denied it,” the supervisor stated.

“[Management] kept saying no one was doing it or that they know of no one doing it,” the source also commented. “They were enjoying the perks of getting data while we work for free.”

Speaking of data, that speaks to another subplot of the story.

The source highlighted governance issues within ACCES-VR and cited concerns about the leadership of Betty Rosa.

Rosa, the commissioner of education and president of the State University of New York, was appointed as permanent commissioner on Feb. 8, 2021, by the Board of Regents.

The source said senior management is populated by people without relevant rehabilitation degrees, leading to a data-driven approach that emphasizes numbers over client relationships.

The toxic work environment created by management has resulted in staff leaving and a lack of proper client interaction, the source stressed.

“So now we are short-staffed and staff are being threatened to keep up with the compliances,” the ACCES-VR supervisor asserted. “Meaning move these clients at any means necessary. Less counseling and more pushing the data.”

‘Too Much Work’

Rob Merrill, director of communications for the New York State Public Employees Federation, has echoed those sentiments.

“Management is much more concerned about the metrics and the numbers because that’s what they have to report up the chain in order to continue their federal slice of the funding,” Merrill told me last month. “And instead, what happens is the individual care and attention that people with disabilities need gets forgotten about.”

When I spoke with Merrill again on Wednesday, he said the union is well aware of concerns about employees working overtime without proper compensation.

“That’s been one of their key planks,” he said of ACCES-VR workers and their concerns about overtime pay. “They brought it up now for at least a year at labor management meetings where they were feeling compelled. They had such a workload that they had to work overtime and they would work it and not get compensated for it.”

As much as you feel for the vocational rehabilitation workers, it’s the resulting service issues for people with disabilities that gets at the heart of the matter.

“So there’s too much work to be done and not enough workers to do it,” Merrill said in a phone interview. “And if suddenly the workers aren’t going to make overtime for work that they feel compelled to do because they want to best serve their clients, then that’s when problems occur. In the end, we need to best serve these people who deserve all the help and assistance they can get.”

Just a few weeks ago, management finally issued a memo with guidance for employees on how to gain overtime approval, Merrill said.

But workers remain hesitant to request overtime, fretting a backlash.

“They still are reluctant to pay it,” Merrill said of the state. “I will say that they’re going to make you jump through hoops.”

As a practical matter, employees are still either working for free or not performing work that needs to get done, the union spokesperson said.

“So the consequences is going to be that people are not going to get the services that they’re expecting because our advice to our members is do not work the overtime unless you already have it in writing that it’s going to be approved,” Merrill explained.

Union officials say their involvement in the early months of 2023 might have helped prompt the investigation.

“We had referred members to the [U.S. Department of Labor] to file overtime complaints, so it may have triggered that way,” a top union official wrote in a reply to questions I had asked Merrill over the phone.

But workers say they should get the credit.

“I can say the union did not trigger this, this came from the members,” a source said. “We have been trying to get the union involved for the longest. However, it was the hard workers that decided to call because we could not take it any longer.”

Leaked Memo

I was able to obtain a July 20 memo sent by Adult Career and Continuing Education Services Deputy Commissioner Ceylane Meyers-Ruff to ACCES-VR stakeholders.

The memo outlines guidelines for approving non-compensatory and paid overtime for eligible staff within various programs.

It emphasizes the policy of limiting overtime and requiring prior supervisor approval for any overtime work.

“Non-compensatory overtime in ACCES should only be approved in situations where the office staffing level requires additional work to meet defined deadlines such as federal reporting or other regulatory or statutory requirements or in situations where specific events requiring this work fall outside of the employee’s regular schedule,” the memo states.

Criteria detailed in the memo also include the consideration of flexing schedules, written requests outlining the need for overtime and cautious approval processes.

“It is the policy of New York State and SED that overtime be held to a minimum,” the memo says.

‘Too Large’

Mel Tanzman is the retired executive director of Westchester Disabled on the Move, a Yonkers-based independent living advocacy center.

He offered a seasoned perspective on the challenges facing ACCES-VR. With more than 30 years of experience in the field and personal connections, including two children who went through ACCES-VR, Tanzman questioned whether SED is even properly suited to oversee such a program.

“My assessment is that the Department of Education is too large and that vocational rehabilitation is a poor fit with its primary mission,” Tanzman stated in an e-mail.

His analysis is based on the complicated history of the department in even trying to fulfill the fundamental responsibility of educating children with disabilities in public schools.

He critiqued the tendency to function more as a childcare service than a provider of quality education for many young people with disabilities.

“While this has improved, it is based on individual district efforts rather than statewide standards,” Tanzman said. “The administration and the Board of Regents does not have significant leadership representation from the impacted population – people with disabilities.”

While some argue that vocational rehab services should be run through the Department of Labor or the Department of Health, Tanzman noted how “most advocates would prefer a freestanding agency only dedicated to serving people with disabilities.”

Change Up

A spokesperson for the state Education Department did not reply this time to my latest request for comment.

“I have to say that the staff do a really excellent job,” Meyers-Ruff did tell me during a wide-ranging interview in June, while acknowledging how the department would benefit from a more robust staff.

Meanwhile, state Comptroller Thomas DiNapoli’s follow-up audit on ACCES-VR, initiated in May, might be unveiled in the coming weeks. On Thursday, I asked the comptroller’s office for an update.

“Still working on it,” replied DiNapoli’s press secretary, Mark Johnson. “We will let you know when it is ready.”

(An audit last year had revealed a lack of timely eligibility determinations and a failure to adequately monitor the program’s effectiveness.)

From sports to business to the public sector, culture matters – and matters a ton.

“It’s so toxic,” the anonymous ACCES-VR supervisor said, “that some of the counselors are not doing their job and so if you hear clients complaining about no calls and no interaction, it is true.”

An agency tasked to help people with disabilities can’t fully deliver on the mission when its own workers feel undervalued or even abused.

Adam Stone

Adam has worked in the local news industry for the past two decades in Westchester County and the broader Hudson Valley. Read more from Adam’s author bio here.