The Hatch Act and You: A Guide for Federal Employees

Federal employees occupy a unique position. As citizens of the United States, they are entitled to all the rights and privileges thereof, including freedom of speech under the First Amendment. However, as government employees, they are in a unique position to influence federal government operations. The Hatch Act aims to balance those two positions by ensuring that federal employees are free to engage in constitutionally protected activity while also maintaining a politically neutral civil service. Given that there are more federal employees in Virginia than in any other state, the Hatch Act and its prohibitions on certain activities are a key concern for many Virginians. If you’re facing an allegation that you have run afoul of the Hatch Act, a Norfolk federal employment attorney can assist you.

The Purpose of the Hatch Act

Readers likely have heard of the Hatch Act if they follow politics. It’s not uncommon for members of the party out of power to accuse officials of the party in power of Hatch Act violations, particularly during election years. But the Hatch Act is more than just a political cudgel. Passed in 1939, it restricts federal employees from engaging in certain political activities to protect them from political coercion, maintain a politically neutral civil service, and preserve the public’s trust in the integrity of the government. It was loosened in 1993 to allow most federal employees to participate in political activities during off-duty hours, but it still tightly regulates political activity during work hours, on federal premises, or while using government resources.

Who Is Covered?

The Hatch Act applies to most civilian employees within the Executive Branch — e.g., employees of the Departments of War, Commerce, Justice, State, Treasury, and other three-letter federal agencies. It also applies to employees of the U.S. Postal Service, state employees, and local employees paid primarily with federal funds. The Hatch Act does not apply to active-duty military personnel, who are subject to similar (and often stricter) restrictions through Department of Defense Directive 1344.10. If you’re unsure whether you’re subject to the Hatch Act, a Norfolk federal employment attorney can help you find out.

Permitted Political Activities

As we’ve established, federal employees remain entitled to the rights and privileges of American citizenship. While they are off duty, off federal property, and not using government resources, most federal employees may engage in the following political activities:

Register and vote in elections
Assist in voter registration drives
Be a candidate in nonpartisan elections
Participate in nonpartisan campaigns
Contribute money to political campaigns, parties, or groups
Attend political rallies, meetings, and fundraisers
Join political clubs or parties
Campaign for or against referenda, constitutional amendments, or municipal ordinances
Sign and/or circulate nominating petitions
Campaign for or against candidates in partisan elections
Make campaign speeches for candidates in partisan elections
Distribute campaign literature in partisan elections
Volunteer to work on partisan political campaigns
Express opinions about candidates and issues

Readers should note that “further restricted” employees (i.e., generally those in law enforcement, intelligence, adjudicative, and election-related positions) may not circulate nominating positions, campaign for or against candidates, make campaign speeches, distribute campaign literature, or volunteer for partisan political campaigns.

Prohibited Political Activities

The Hatch Act generally allows most federal employees to engage in political activities freely, provided that they are off duty. However, when they are on duty, much stricter prohibitions come into play. While on duty (including while teleworking), on federal property, using government resources, or wearing a uniform or insignia, employees may not:

Be candidates in partisan elections
Use their official authority or influence to interfere with or affect the result of an election
Knowingly solicit or discourage the participation in political activity of anyone who has business before their employing office
Solicit, attempt, or receive a donation for a partisan political party, candidate, or group
Distribute or display campaign materials or items
Wear or display partisan political buttons, t-shirts, signs, etc.
Make political contributions to a partisan political party, candidate, or group
Post comments to social media that advocate for or against a partisan political party, candidate, or group
Use any email or social media account to distribute, send, or forward content that advocates for or against a partisan political party, candidate, or group

If you are a federal employee who is facing termination or any other disciplinary measure due to an allegation that you engaged in prohibited political activity, a Norfolk federal employment attorney can help you defend your interests.

Hatch Act Investigations, Enforcement, and Penalties

Anyone can file a complaint of a suspected Hatch Act violation — including other federal employees. The U.S. Office of Special Counsel (OSC) handles Hatch Act complaint investigations. Generally, OSC reviews the allegations, gathers facts, interviews witnesses, and examines documentary evidence, such as email or social media posts. If OSC determines that a violation has occurred, it typically refers the case to the Merit Systems Protection Board (MSPB) to determine a penalty. Minor violations typically result only in warnings or counseling, but more serious violations can lead to suspension, demotion, removal, civil fines, and even a ban from federal service.

Best Practices for Federal Employees

The principal best practice to avoid allegations of Hatch Act violations is the simplest and also beneficial, even for private-sector employees: Keep politics out of the workplace. Maintain strict separation between work devices/accounts and personal devices/accounts. Given that many Hatch Act violations involve social media, exercise particular caution when posting, liking, or commenting on anything political using an account that contains your job title (e.g., LinkedIn). If you’re unsure of whether a particular activity may expose you to Hatch Act liability, seek the advice of legal counsel or an OSC advisory opinion.

Beat Allegations of Hatch Act Violations With Help From a Norfolk Federal Employment Attorney

If you’re facing an allegation of violating the Hatch Act that could jeopardize your federal career, you should seek the counsel of an experienced attorney. For more information, please contact a Norfolk federal employment attorney at Pierce / Jewett by calling 757-624-9323 or using our online contact form.