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New Hatch Act Guidance Limits Federal Workers From Certain Speech

Federal employees are prohibited from undertaking partisan political activity while on duty, in the federal workplace or when invoking official authority. This is due to the Hatch Act, a 1939 law aimed at preventing undue interference in elections by federal employees. Bribery, intimidation and coercion of campaign contributions are prohibited by the Act, for example -- as is the use of federal resources for certain political activities, such as campaigning for a particular candidate or party.

The Office of Special Counsel (OSC) is tasked with enforcing the Hatch Act, and it recently issued new guidance on what sorts of political speech would, if undertaken at work, violate the Hatch Act. Unfortunately, the guidance offers few bright-line rules. Moreover, critics argue that the guidance is overbroad and could allow retaliation against federal workers who express their political opinions in good faith. It could also put a chill on lawful types of speech protected by the First Amendment or constrain government whistleblowers.

What activities are prohibited under the new guidance?

Any strong praise or criticism of administration policies that is "directed toward the success or failure of a political party, candidate for partisan political office, or partisan political group." This could be read as prohibiting "strong" criticism of President Trump, as he has announced his candidacy in the 2020 presidential race.

Any advocacy for or against the impeachment of a federal candidate. The OSC clarifies that advocating for the impeachment of someone who is not a political candidate would not violate the Hatch Act.

Taking part in "the resistance," posting to #Resist, or similar activity, as such terms "have become inextricably linked with the electoral success (or failure) of the president." The agency notes that such activity would not have violated the Hatch Act when President Trump was not considered a candidate.

Whether an individual employee has violated the Hatch Act, the OSC says, must be determined on a case-by-case basis, as potential violations depend on the underlying facts. Hatch Act violations aren't criminal, but workers could face anything from no discipline or a reprimand to job termination.

After pushback from watchdog groups, the OSC issued some clarifications. For one thing, it said, that the guidance should not be read to limit whistleblowers' right to report wrongdoing. It also clarified, for example, that "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."

If you find this guidance confusing, you are not alone. If you are the subject of proposed discipline surrounding the Hatch Act, we urge you to contact an experienced employment law attorney.

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