Social media provides the opportunity to share commentary on all aspects of daily life, but federal employees should be especially wary of posting about politics. The Hatch Act places limits on federal employees’ ability to engage in political activity. While some federal employees are limited from participation while on duty, others (i.e. employees of law enforcement and intelligence agencies) must refrain from political activity altogether.
What is the Hatch Act and who does it apply to?
The Hatch Act applies to all civilian employees of the executive branch, as well as state, D.C., and local employees who work with federally-funded programs. In general, it prohibits federal employees from doing three things: (1) engaging political activity while on duty or in the workplace; (2) engaging in political activity in an official capacity; and (3) soliciting or accepting political contributions.
In addition to the above limitations, some employees are “further restricted” from engaging in political activity on behalf of a partisan group or candidate. Such employees include career members of the SES, administrative law judges, contract appeals board members, administrative appeals judges, and employees of the following agencies/agency components: ATF (Office of Law Enforcement); CIA; DOJ (Criminal Division and National Security Division); DIA; EAC; FBI; FEC; IRS (Office of Criminal Investigation); MSPB; NGA; NSA; NSC; ODNI; OSC; Secret Service; and USCS (Office of Investigative Programs).
While employees of the courts have long been prohibited from partisan activity, a new rule extends that prohibition. Beginning on March 1, employees of the Administrative Office of the U.S. Courts and the Federal Judicial Center may not make campaign contributions or engage in partisan activity.
The Hatch Act does not apply to active members of the Armed Forces, but uniformed personnel are subject to a Department of Defense directive that is essentially the same. The Hatch Act also does not apply to the president, vice-president, and other designated high-level officials.
What does the Hatch Act mean for me?
This means that all federal employees should refrain from posting, liking, or sharing anything about politics on Facebook, Twitter, etc. while at work. You should never refer to your official titles or positions while engaging in political activity (but listing your position on your social media page, without more, is not improper). You also cannot ask for political contributions, so do not post, like, or share links to the political contribution page of any partisan group or candidate.
If you are a “further restricted” employee, you are still allowed express opinions about a partisan group or candidate and to advocate for issues (subject to the general limitations described above). However, you cannot post or share the campaign or partisan material of a group or candidate. Thus, as a further restricted employee, you should not share Facebook pages (or its content) or retweet Twitter posts of any partisan group or candidate.
Current issues involving the Hatch Act
Over the past few years, several well-known public officials have faced possible Hatch Act violations due to their statements to the press and social media activity.
The Office of Special Counsel, the agency responsible for investigating Hatch Act violations, issued a warning to U.S. Ambassador Nikki Haley for retweeting a tweet from President Trump endorsing Republican Congressional candidate Ralph Norman.
Kellyanne Conway also found herself in hot water over her statements regarding the Alabama U.S. Senate special election. OSC concluded that Kellyanne Conway violated the Hatch Act by opposing Doug Jones’ candidacy. Conway called Jones a “doctrinaire liberal” who would be “a vote against tax cuts, and said he is “weak on crime, weak on borders.” She also stated that Trump “wants Roy Moore in the U.S. Senate” and “the only endorsement that matters in this race is President Trump’s.”
In 2016, U.S. Senate Democratic Minority Leader Harry Reid stated that FBI Director James Comey may have violated the Hatch Act by sending a letter to Congress concerning the reopening of the investigation into Hillary Clinton’s emails.
What about non-government employees?
While private employees are not subject to the restrictions of the Hatch Act, they should remember that their employment is at will. In general, your employer can fire you for any reason or no reason (but not because of race, color, gender, national origin, religion, age, or disability). Thus, the Hatch Act still provides useful guidance for private employees to limit their political involvement both in and out of the workplace.
Are you a federal employee that has experienced adverse action due to social media activity or some other cause? Alan Lescht & Associates PC can help you fight a proposed suspension or removal. Give us a call today at (202) 463-6036, email us, or visit our website. We offer strategic and results-driven legal services to federal government employees around the world.