The Hatch Act trips up some federal employees during every election cycle.
The Office of Special Counsel (OSC) ensures that political activity by federal employees does not rise to the level of violating this 1939 law. The purpose of the law and the role of OSC is to ensure federal programs are administered in a nonpartisan fashion, to protect federal employees from political coercion, and to ensure that federal employees are advanced based on merit and not based on political affiliation.
So, what does the Hatch Act have to do with the Black Lives Matter (BLM) organization?
The phrase “Black Lives Matter” is frequently being used in protests and is associated with demonstrations in locations throughout the United States. Additionally, BLM-related organizations have supported or organized demonstrations. OSC issued guidance to federal agencies on July 10, 2020 on this issue.
Hatch Act Issues and BLM
According to the Office of Special Counsel: “[N]umerous federal employees have asked OSC whether BLM or related materials raise any Hatch Act concerns when used or displayed while on duty or in the federal workplace.
OSC highlights two issues in recent guidance issued to federal agencies.
- Is using BLM terminology inherently political activity?
- Is the Black Lives Matter Global Network (BLMGN) a partisan political group?
The OSC analysis will impact federal employees and agencies on what has certainly become a hot-button issue as we approach national elections in November.
OSC Guidance on Hatch Act and BLM
According to the guidance from OSC, “using BLM terminology is not inherently political activity and BLMGN is not currently a partisan political group.”
This means, again according to OSC, that the Hatch Act generally allows employees to engage in BLM-related activity while on duty or in the workplace. But, as described below, employees are still prohibited from combining BLM-related activity with “political activity” while on duty or in the workplace and from engaging in partisan political fundraising in connection with BLM-related organizations.
“Political activity” is an activity directed toward the success or failure of a political party, candidate for partisan political office, or partisan political group.
Because OSC has concluded, and provided this guidance to federal agencies, federal agencies are not prohibited from wearing BLM clothing or supporting BLM in the workplace. Similarly, federal employees are not prohibited from expressing an opinion in opposition to BLM.
What Federal Employees Cannot Do
The OSC guidance is also specific on what federal employees cannot do in the workplace.
As noted by OSC, this is a “hot-button” issue. That may be an understatement in some organizations. The OSC guidance is very focused on the Hatch Act so their guidance on what types of actions are prohibited are also focused on the Hatch Act.
In other words, any federal employee should be careful. This OSC guidance is not a blank check that enables a federal employee to cross into political activity while supporting Black Lives Matter. Here are examples of actions that would create a Hatch Act issue.
- BLM is an issue-based organization says OSC. However, a federal employee may not say “if you believe that Black Lives Matter, then you should vote for/against X in November.” That is a political statement and would violate the Hatch Act.
- If Black Lives Matter should sponsor or organize a fundraiser to support a candidate for partisan political office, the Hatch Act would prohibit an employee from advertising, promoting, or inviting others to attend that fundraiser.
- Employees also may not solicit, accept, or receive political contributions in the workplace. Political contributions are for the purpose of promoting or opposing a political party, a partisan political group, or a candidate for partisan political office, even if the conduct is for an issue-based organization.
Be Careful in Agency Policies and Actions
This is a personal opinion based on my work in the federal human resources system for over 30 years.
My guess is that some agencies and employees approached the Office of Special Counsel seeking guidance on how to deal with this “hot-button” issue. If OSC had said that supporting BLM is an inherent political activity, the Hatch Act would enable an agency to use that as a way to prohibit discussions, posters or activity regarding BLM. From an agency’s perspective, that would have made it easier to steer around this issue.
OSC did not do that. Their advice to agencies is very focused. There will be some employees who will be tempted to use this decision as a way to advance their personal beliefs in the workplace. As a “hot-button” issue, this can lead to conflict.
What if an employee wears a BLM shirt to the office? The next day, the person in the next cubicle wears a “Blue Lives Matter” or “All Lives Matter” shirt to the office. The conflict builds and leads to an altercation that is very disruptive.
Some agencies already have policies in place that prohibit displaying posters in the workplace. A poster of Elvis Presley may not be controversial but some agency policies would prohibit this.
If a policy is already in place that prohibits this type of display, it would also apply to other “non-political” displays. This policy would presumably extend to displays showing support for the National Rifle Organization, the Tea Party, a favorite rock group, BLM or the “Playmate” of the year.
Agencies will have different policies. Some federal agencies deal with the public and already prohibit displays that would be seen by the public and create potential problems. Others are more relaxed for a variety of reasons.
It will be easier for agencies to deal with some of these issues in advance of altercations actually occurring in the workplace. An agency or federal organization that allows posters or displays supporting a variety of organizations but does not allow support of BLM will be facing potential problems and appeals in a variety of legal forums.
