Political conversation in the workplace can create a minefield for federal employees. With the Hatch Act’s restrictions on political activity, federal workers must understand on-the-job boundaries of lawful political discourse. This issue has arisen in light of the understandable desire to discuss recent, deadly global conflicts such as the Russia-Ukraine and Israel-Hamas wars.
Understanding the Hatch Act
The federal Hatch Act attempts to create a neutral, nonpolitical federal workforce. The law covers most employees in the executive branch as well as some in civil service jobs.
The Act attempts to depoliticize the federal workplace through restrictions on political activity – the type as well as when and where employees can engage in it. The law regulates activity involving political parties and partisan candidates for elected office.
Most covered employees are “less restricted employees” who must avoid political activity while at work or on duty but are free to engage in most partisan political activity when off duty. Tighter limits apply to “further restricted” employees mostly involved in security, law enforcement or elections.
The Act’s key limitations on covered employees:
- Prohibit engagement in political activity while on duty, including while in a federal building, wearing a federal uniform or insignia, or while using government equipment like a vehicle, computer or email account
- Restrict political campaigning for or against party-affiliated candidates or political parties while on duty
- Forbid at all times the use of “official authority or influence for the purpose of interfering with or affecting the result of an election”
- Ban on- and off-duty political fundraising or seeking elected office in an election with party affiliation
- And others
Penalties for Hatch Act violations
These can be serious and may include:
- Investigation by the U.S. Office of Special Counsel (OSC) followed by potential prosecution before the Merit Systems Protection Board (MSPB)
- Reprimand, bar of federal employment for a maximum of five years, grade reduction, suspension or termination
- Civil fines
OSC advisory on the Israel-Hamas conflict
On Jan. 16, a group of federal workers called Feds United for Peace organized a day away from work to protest the administration’s stance on the Israel-Hamas war. According to Government Executive, leaders of the group – after seeking ethical and legal advice – advised involved employees to take annual leave for the day.
This raises gray-area issues under the Hatch Act. Were they on duty when absent on approved annual leave days? Could this be interpreted as use of their official positions to make a political statement? Some in Congress are calling for discipline and questioning whether the event could have been an illegal strike, reports Government Executive.
On Nov. 29, 2023, the OSC issued an advisory opinion for federal workers on discussing the Israel-Hamas conflict. The key takeaway from the OSC advisory is that federal employees are permitted to discuss their views on the Israel-Hamas conflict while at work or on duty provided they do not advocate for or against a specific U.S. political party, group or candidate.
Federal employees should protect their careers
For federal workers, understanding the Hatch Act is crucial for safely engaging in political discussions. The OSC’s advisory offers clarity for current global conflicts, but employees should always remain aware of the Act’s restrictions to avoid potential penalties.
When in doubt, a lawyer who regularly represents federal workers can provide information and guidance on this complex and sensitive topic. Legal counsel can represent any federal employee who faces internal or OSC investigation, or MSPB prosecution for alleged violation of the Hatch Act, or who faces related discipline, discrimination or retaliation at work.