4 Things to Keep in Mind about New Hatch Act Guidance

Categories: The Insider

The Office of Special Counsel, which enforces the Hatch Act, has recently issued new guidance telling federal employees not to talk about “impeachment” or to use terms like “#resist” or “#resistance” while on duty or in the workplace until after Election Day in 2020.  

OSC quickly issued a clarification after our union and allies raised concerns

“Resist” and “resistance”

According to OSC, the phrases “resist” and “resistance” are being used by political groups in their efforts to oppose President Trump’s reelection. But it clarified that “Usages of the terms “resist” and “the Resistance” while on duty or in the workplace that are not directed toward the success or failure of a political party, candidate for partisan political office, or partisan political group are not prohibited by the Hatch Act.  

For example, using “#resist” in relation to an issue, such as “#ResistHate” or “#ResistKavanaugh,” is not political activity under the Hatch Act. We will continue to evaluate the facts and circumstances of each individual complaint that we receive in order to determine whether any alleged conduct violates the Hatch Act.”

OSC also explained that “While on duty or in a federal workplace, employees are prohibited from wearing, displaying, or distributing items from President Trump’s 2016 or 2020 campaigns, like “Make America Great Again,” “#MAGA.”  

This prohibition extends to activity on social media or in other forums.

“Impeachment”

OSC clarified that its guidance was not intended to prevent all discussions of impeachment in the federal workplace. For instance, merely discussing impeachment without advocating for or against it is okay.

“OSC has been asked whether an employee may display items that advocate for the impeachment of the president, who is a candidate for reelection. OSC has advised against this activity because OSC considers advocacy for or against the impeachment of a candidate for federal office to be political activity under the Hatch Act. However, merely discussing impeachment, without advocating for or against its use against such a candidate, is not political activity.  

For example, two employees may discuss whether reported conduct by the president warrants impeachment and express an opinion about whether the president should be impeached without engaging in political activity. An employee may not, however, display in his or her office a poster that states “#Impeach45” or place a “Don’t Impeach Trump” bumper sticker on a government-owned vehicle because such conduct advocates for or against impeachment of a candidate for federal office.”
 
Our union will always work to make sure the rights of federal employees are protected -- including your rights to free speech. In the meantime:

Here are 4 things to keep in mind about OSC’s latest Hatch Act guidance:

1. OSC’s guidance applies only to those on duty or in the workplace

Off duty, off government property, and without use of government resources (such as agency email), those employees who are deemed “less restricted,” which is most federal employees, are free to express their political opinions.

2. Clearly, OSC is now actively and aggressively reviewing worktime social media posts

They are reviewing worktime posts or even “likes” as it could trigger an investigation based upon OSC’s current guidance.  

3. Employees are advised to comply with the guidance

OSC noted that it has been fielding a lot of inquiries as to employees/managers wearing MAGA hats or displaying material with the words “Resist” or “#Resistance,” and that such material, and/or support or opposition to a possible impeachment of President Trump while at the worksite could be looked at as a violation of the Hatch Act.  

While AFGE has serious concerns with this interpretation and its possible application, we urge all employees to comply with the OSC guidance.

4. Our union is reviewing avenues to address our concerns

Our union will be reviewing all possible avenues to address our concerns that even the revised guidance leaves employees without clear notice of what is an actual violation.  

As always, AFGE will communicate all of its political activity to members via personal email or other non-governmental worksite methods (mailings to home addresses, off-duty meetings, or calls/texts to personal phones), and we will continue to note on such material to not distribute/forward at the worksite. 

Please make sure that AFGE has your correct and updated home email, mailing address, and personal phone numbers, and encourage your co-workers to be sure to update theirs as well.


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