Most of the Hatch Act provisions still apply while working from home. Morsa Images / Getty Images
How Does Telework Affect The Hatch Act? Election Season Do’s and Don’ts
The fourth installment in a series about the rules and policies federal employees should know ahead of the midterm elections.
Editor’s note: This is the fourth in a series that looks at the rules and laws governing federal employees’ political activities as we head into the midterm elections.
The midterms are fast approaching and federal employees who are teleworking full or part time might be wondering if that affects their compliance with the Hatch Act.
Shortly after the shift to maximum telework during the COVID-19 pandemic, the Office of Special Counsel issued guidance, underscoring that the rules are the same while working from home. Now with the midterms less than a month away, there might be renewed questions, even if employees are back in the office for some portion of the work week.
“Telework has obviously been a big thing over the past two years; we get a lot of questions from employees,” an OSC attorney explained in a recent interview with Government Executive.
“In terms of teleworking, most of the [Hatch Act] prohibitions apply all the time,” the attorney said. “The only prohibition that is really impacted is the prohibition against engaging in political activity while on duty or in a federal building. For purposes of that prohibition, ‘on-duty’ is when you are in a paid status, other than paid leave. So, if employees are working from home, but they’re on duty, they’re getting paid by the government, then they’re still subject to the prohibition against engaging in political activity while on duty.”
For example, while teleworking federal employees can’t be posting political messages on social media and they can’t be wearing a campaign hat while on video call, the attorney said.
“In general, it has always been pretty easy to avoid violating the Hatch Act,” Debra D’Agostino, founding partner of the law firm Federal Practice Group, told Government Executive. “The issue telework presents is that the line between on and off duty is more blurry.”
For example, “If an employee reports to a worksite and leaves every evening at 5 p.m., it is usually pretty clear that after 5 p.m. the employee is no longer ‘on duty.’” she noted. “But teleworkers may go on and off duty in a less defined matter; e.g., logging on after dinner to finish a memo and then hopping onto Facebook 20 minutes later, possibly on the same device. Because the lines between permissible and impermissible activities usually depend on whether an employee is on duty, teleworkers should make sure to not create problems for themselves that could easily be avoided.”
Stephanie Rapp-Tully, partner at Tully Rinckey PLLC who specializes in federal employment law, said she believes “social media is a really big pitfall” for the Hatch Act, as this is an area where “people haven’t quite figured out the boundaries yet.”
Similarly, D’Agostino said “it seems there is still confusion about what federal employees can and can’t do on social media.”
Federal employees who are “less restricted” can express “their opinions about a partisan group or candidate in a partisan race (e.g., post, ‘like,’ ‘share,’ ‘tweet,’ ‘retweet’), but there are a few limitations, such as engaging in this activity while on duty or at the workplace; using their official titles or positions in a post; or soliciting political contributions at any time,” OSC says on its website. “Further restricted federal employees also may express their opinions about a partisan group or candidate in a partisan race,” but they have the limitations listed above as well as others.
OSC said in a guidance refresher last year that Hatch Act “restrictions apply regardless of whether an employee is using government equipment or a personal device or whether the employee’s social media account is private, public or uses an alias.”
Attorneys John Berry and Kimberly Berry of Berry & Berry PLLC, an employment and labor law firm, wrote in a post in February that “where agencies have established policies permitting limited personal use of government resources by their employees, those policies may authorize employees to access their personal social media accounts while on duty.” However they cautioned that “there is no right to privacy on work devices,” such as computers and phones.
Most federal employees fall under the “less restricted” category and are afforded more ability to engage in off-the-job partisan political activity than those in the “further restricted” category, which includes federal employees at investigative and enforcement agencies. Federal employees should be aware that some agencies place employees in a further restricted category who otherwise would not be (for example the Justice, State, Homeland Security and Defense departments). Also, there are some exceptions to Hatch Act rules for political appointees.
For more specific scenarios, OSC’s website has a frequently asked questions and answers section on social media and the Hatch Act.