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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 or 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.”