In divisive times, federal workers may fear retaliation for political views

On Behalf of | Nov 18, 2021 | Federal Employment Law, Hatch Act

Our country has been through significant stress and change in the recent past – and we have emerged more divided than ever, it seems. From the pandemic to civic unrest and violence, Americans are reeling. Add to that the controversial, dangerous explosion in heated online rhetoric, largely on social media and including an apparent host of misinformation, that has also contributed to ongoing political alienation in America.

Dissension has heightened our political divisions at all levels from school board contests to the presidential election. So, it is not surprising that a summer 2021 survey confirmed serious chasms between the right and left. “The divide between … voters is deep, wide, and dangerous. The scope is unprecedented, and it will not be easily fixed,” explained University of Virginia Center for Politics Director Larry J. Sabato. (The Center along with Project Home Fire conducted the polling project to generate statistics to understand the political chasm and study ways to bridge the gap.)

Concerns about political restrictions in the federal workspace 

The politics of division likely spills over into many workplaces, but federal workers of any political stripe may have heightened concerns because of issues unique to their employment. The political chaos in our nation’s capital cannot help but impact government employees who already labored under many restrictions.

Federal rules limit most federal employees’ political activities at work. The Hatch Act and its extensive regulations divide covered federal employees into “less restricted” and ”further restricted” categories. Under the Act, all covered employees retain the right to vote and express political opinions but are subject to complicated curtailing partisan activity, mostly surrounding political parties and candidates. For example, they may not run as candidates in partisan elections. In addition, a covered employee may not use their government-employment status to influence any election, along with several more restrictions.

Most employees are in the less-restricted category and may participate in activities of political parties or affiliated candidates when they are not working. Specifically, the statute says a covered employee cannot do so when on federal property or on duty; when in a work uniform or wearing an insignia tied to their job; or when using a government vehicle.

Restrictions on further-restricted employees are even tighter and apply mostly to certain workers in agencies and departments that handle intelligence, security or elections.

Gray areas in application of the Hatch Act

Hatch Act restrictions can be more complex and difficult to interpret with the evolution of technologies like mobile phones and computers as well as the sharp rise of remote, at-home work. For example, while on duty, a covered federal employee may not (among many other things) send emails for or against a political party or party-affiliated candidate, nor may they post or comment on social media about the same or on pages affiliated with partisan issues, groups or candidates.

What if you do so on a plane – but the travel is for your federal job? Or, if you make phone calls for a partisan candidate on your work break at home, are you on duty? Missteps could easily be inadvertent, or others could take advantage of gray areas to lodge politically motivated accusations of violation. Do not face this alone. Fighting back with the support and skill of a lawyer is important since violations can result in a wide range of sometimes severe discipline, including termination.

These examples only scratch the surface of potential Hatch Act issues. You may be a federal employee who feels unfairly or wrongly investigated or who faces potential discipline for an alleged violation by the Office of Special Counsel (OSC) because of your political views. In serious cases, this can lead to prosecution before the Merit Systems Protection Board (MSPB). It is important to seek legal advice and representation from an attorney with deep experience in federal employment law as early as possible to understand options for fighting the allegations and to protect all you have invested in your federal career. Have a lawyer by your side to negotiate on your behalf, resist OSC disciplinary efforts and investigate any illegal political discrimination against you.

Archives