A Hatch Act Primer for Federal Employees: What to Know as the Election Nears

The Hatch Act restricts federal employees’ political activities. As violations of the Hatch Act can have serious consequences, it is imperative that all federal employees have a clear understanding of what is (and isn’t) permitted. What do you need to know as the election nears? Federal employment attorney Jamaal (Jay) W. Stafford explains:

Hatch Act Rules that Apply to Most Executive Branch Employees

All employees of the federal executive branch are subject to the Hatch Act. This includes employees of all federal offices and agencies. The Hatch Act’s rules fall into two broad categories: (i) those that apply to all federal executive branch employees and (ii) those that apply exclusively to “further restricted employees.”

The rules that apply across the board include:

• Executive branch employees may not engage in political activity while on duty, in a federal facility, in a federal vehicle, or wearing a federal uniform or official insignia.
• Executive branch employees may not use their official title or position while engaging in permissible off-duty political activity.
• Executive branch employees may not invite or attempt to persuade subordinate employees to participate in any political activities or attend political events.
• Executive branch employees may not encourage or discourage political participation by anyone who has business before their office or agency.
• Executive branch employees may not host political fundraisers, sell tickets to political fundraisers, or otherwise solicit contributions to political candidates, groups or parties.

Political activities that are prohibited while on duty, in a federal facility, in a federal vehicle, or wearing a federal uniform or official insignia include:

• Displaying campaign materials
• Distributing campaign materials
• Performing campaign-related activities
• Wearing partisan clothing or buttons
• Making political contributions
• Posting partisan comments online (including on social media)
• Sending partisan emails or other partisan electronic communications

However, the Hatch Act does not prevent federal employees from engaging in partisan political activities entirely. Executive branch employees (other than further restricted employees) may engage in various partisan political activities during their personal time. Some examples of permissible off-duty partisan political activities include things like expressing political opinions, signing petitions, volunteering for political campaigns, distributing campaign materials, assisting with voter registration drives, attending rallies and attending fundraising functions.

Many individuals engage in political discourse on social media. Recognizing the pervasiveness of social media and the potential for federal employees to be viewed as representatives of their employers, the Office of Special Counsel (OSC) has published specific guidance for Hatch Act compliance on social media. As the OSC explains, “[i]n general, all federal employees [other than ‘further restricted employees’] may use social media and comply with the Hatch Act if they remember the following three prohibitions:

• On Duty or in the Workplace Prohibition – Employees may not engage in political activity while on duty or in the federal workplace.
• 24/7 Prohibition – Employees may not knowingly solicit, accept, or receive a political contribution for a political party, candidate in a partisan race, or partisan political group.
• 24/7 Prohibition – Employees may not use their official authority or influence to affect the outcome of an election.”

Of course, these aren’t the only rules that apply, and the OSC’s guidance includes nine pages of additional explanations and examples. It is worth reading for any federal employee who intends to post political content on social media before (or after) the election cycle.

Additional Hatch Act Rules that Apply to “Further Restricted Employees”

While the above restrictions apply to all federal employees within the executive branch, additional restrictions apply to those who are classified as “further restricted employees.” These include members of the Senior Executive Service (SES), administrative judges, contract appeals board members, and employees of several federal agencies. Covered federal agencies include (but are not limited to):

• Central Intelligence Agency (CIA)
• Election Assistance Commission (EAC)
• Federal Bureau of Investigation (FBI)
• Federal Election Commission (FEC)
• National Security Agency (NSA)
• National Security Council (NSC)
• U.S. Secret Service

As the OSC explains, “Further restricted federal employees are prohibited from taking an active part in partisan political management or partisan political campaigns. Specifically, these employees may not campaign for or against candidates or otherwise engage in political activity in concert with a political party, a candidate for partisan political office, or a partisan political group.” This applies not only when these employees are on duty but also during their off-duty time.

However, further restricted employees can still engage in certain political activities. Some examples of permissible activities include contributing money to political campaigns, assisting with nonpartisan voter registration drives, attending political rallies and fundraising functions, and expressing opinions about candidates and issues. When participating in these activities, further restricted employees must be very careful to ensure that they comply with the law, as violating the Hatch Act can create exposure to substantial penalties.

Penalties for Hatch Act Violations

Federal employees who violate the Hatch Act can face serious employment-related consequences. Along with a civil monetary penalty of up to $1,330, Hatch Act violations can also result in:

• Reprimand
• Suspension
• Reduction in grade
• Removal from federal service
• Debarment from federal employment for up to five years

With these risks in mind, if you have been accused of violating the Hatch Act, it is important that you seek representation from an experienced federal employment attorney promptly. You may have defenses available, and you are entitled to assert your right to due process. Due process violations will render adverse employment actions invalid in many cases, and your attorney may be able to help you avoid adverse action even if you have violated the law.

Need Help? Schedule a Confidential Consultation with a Federal Employment Attorney Today

Are you facing adverse employment action for an alleged Hatch Act violation as a federal employee? If so, we encourage you to contact us promptly for more information. To speak with an experienced federal employment attorney at The Law Firm of J.W. Stafford in confidence as soon as possible, call 410-514-6099 or tell us how we can reach you online now.