Federal Oversight

For feds: To post or not to post, that is the question [Commentary]

In light of the current political climate, it is practically impossible to log onto Facebook, Twitter, Instagram, Snapchat or any other social media platform and not see someone expressing their political opinion. It is everywhere and the more you read the more you are tempted to engage, whether by posting your own comment, liking someone's comment, sharing someone's post, tweeting or retweeting.

The First Amendment does protect federal government employees who use social media to express their objections to the administration's policies and orders and even to pending legislation. However, before hitting "post," federal employees should keep the Hatch Act in mind.

The Hatch Act prohibits federal government employees from engaging in "political activity" while on duty, in the workplace or in an official capacity at any time. "Political activity," however, is very specifically defined in the Hatch Act and does not include what most people think of when they use that term. Instead, "political activity" refers to any activity directed toward the success or failure of a political party, partisan political group or candidate in a partisan race (but not an elected official after the race). It does not include opining on or protesting current events or matters of "public interest" (which under the law actually is what you think it is) or liking a post objecting to a presidential nominee.

This seems straight forward enough, but given the changing nature of the federal workplace and the increase in the use of telework, mobile devices, email and social media while on duty, the line between personal and professional activity is often blurred.

For example, an employee on a break between meetings at work that uses his personal cell phone to check Facebook and "like" a post by a partisan group may have committed a Hatch Act violation. This scenario may also pose a Hatch Act violation if it occurred while the employee was teleworking from home during duty hours and not in a federal government building.

The U.S. Office of Special Counsel, which is charged with prosecuting Hatch Act violations, issued a guidanceindicating that "federal employees are considered ‘on duty’ during telecommuting hours." Additionally, OSC advises that federal employees who choose to display a political party or campaign logo or a candidate’s photograph as their social media profile picture cannot post, share, tweet or retweet

any

items on that social media account while on duty or in the workplace because each action would show their support for a partisan group or candidate in a partisan race, even if the content of that activity is totally unrelated and not political.

Federal employees can avoid violating the Hatch Act by expressing their political opinions on their own personal social media accounts after business hours. Additionally, supervisors who are "friends" with or have "followers" that are subordinate employees can engage in political activity on personal social media accounts after business hours, but should direct statements about partisan groups or candidates in a partisan race at all of their social media friends/followers (e.g. by posting it on their Facebook wall) and not at specific subordinate employees via private messages or comments.

When in doubt, federal government employees should consult OSC or their agency’s ethics offices.

Isabel Cottrell is an Associate at the Federal Practice Group and has substantive experience in federal employment.

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