If you are a current federal employee, you are undoubtedly aware that you are subject to the rules regarding the Hatch Act. But as a former federal employee, are you subject to the Hatch Act?

The answer is yes. The U.S. Office of Special Counsel (OSC) recently issued an Advisory Opinion stating that OSC has jurisdiction to enforce the Hatch Act against former federal employees. This creates implications for both current and former federal employees that they should not ignore and clarifies that leaving federal service does not diminish OSC’s enforcement authority.

The decision comes after the OSC announced in April 2025 that it would temporarily refrain from filing new complaints against former employees for Hatch Act violations committed during their federal employment until the U.S. Merit Systems Protection Board (MSPB) ruled on whether it had jurisdiction over such complaints. Since that time, an MSPB Administrative Law Judge ruled that the MSPB does indeed have jurisdiction over Hatch Act complaints filed against former employees. Accordingly, subject to its discretion and the circumstances of each case, OSC will no longer refrain from filing complaints at the MSPB alleging Hatch Act violations where the subject employee has left federal service, according to the OSC advisory opinion.

Therefore, it is critical that both current and former federal employees understand their obligations under the Hatch Act and closely follow OSC guidance.

What Is the Hatch Act?

The Hatch Act is a federal law passed in 1939, and its intent is to “ensure that federal programs are administered in a nonpartisan fashion, to protect federal employees from political coercion in the workplace, and to ensure that federal employees are advanced based on merit and not based on political affiliation,” the OSC website states.​​​​ ​​

How Does the Hatch Act Affect Me?

It depends. Current and former civilian employees, including part-time workers, in the executive branch of the federal government (excluding the president or the vice president) and employees of the U.S. Postal Service are covered by the provisions of the Hatch Act.

Federal employees fall within two categories under the Hatch Act: “further restricted” and “less restricted.” With some exceptions, further-restricted employees consist of employees in intelligence and enforcement-type agencies, such as the Federal Bureau of Investigation and the Federal Election Commission, among others, and includes senior executives in the executive branch wherever they are located.

Also, with some exceptions, most federal executive branch employees are considered les​​s restricted under the Hatch Act. These employees are allowed to take part in partisan political management or partisan political campaigns, according to the OSC.

The Hatch Act also restricts the political activity of individuals employed by state, D.C. or local executive agencies and employees who work in connection with programs that are funded completely or partially by federal loans or grants.

Additionally, both federal and D.C. employees are subject to the Hatch Act when they are on annual leave, sick leave, leave without pay, or furlough. However, employees who work on an occasional or irregular basis, or who are special government employees, as defined in title 18 of United States Code §202(a), are subject to the restrictions only when they are engaged in government business, according to the OSC.

Hatch Act Violations

Complaints regarding alleged Hatch Act violations are handled by the Hatch Act Unit, within the OSC, in Washington, D.C. The Hatch Act unit provides advisory opinions, enabling individuals to determine whether their contemplated political activities are permitted under the act.

Federal employees — both current and former — must cooperate and provide testimony, information, and documents during any OSC investigations. The same rule requires federal agencies to make employees available to testify, on official time, and to provide pertinent records, and it is unlawful for agency management to retaliate against a person for providing information to OSC, according to the agency. If necessary, OSC may issue subpoenas for documents or the attendance and testimony of employees and during an investigation, OSC may require employees and others to testify under oath, sign written statements, or respond formally to written questions.

OSC permits subjects and witnesses regarding potential Hatch Act violations to have a personal legal representative at interviews, of which they are responsible for arranging for their own legal representation. Those that wish to have a personal legal representative present during their interview must inform OSC before the interview and provide OSC with a complete Designation of Personal Legal Representation form​​, signed by both the federal employee and his or her attorney.

Responding to a Hatch Act Violation

Following an investigation, OSC may seek fines or disciplinary action against an employee who has violated the Hatch Act before the MSPB. Violations that are not “sufficiently egregious” to warrant prosecution, may result in a warning letter to the employee involved, according to the OSC. It is important to note that OSC has vigorously prosecuted cases before MSPB over Hatch Act violations that have resulted in removals and suspensions of federal employees, and that OSC takes Hatch Act violations very seriously.

If you have questions about how potential Hatch Act violations may affect you as a current or former federal employee, our Tully Rinckey attorneys can help. Schedule a consultation online or call 8885294543.