The federal government, at least in theory, attempts to discourage federal employees from engaging in any sort of partisan political activity while on duty and/or at their place of employment. Considering what a hot topic all of the Black Lives Matter demonstrations and/or riots have been lately, how such a flashpoint is handled in government offices has become a question of interest. Since these types of encounters or displays generally fall under the Hatch Act, the Office of Special Counsel (OSC) was prompted to provide some guidelines this week. And perhaps it won’t come as much of a surprise to learn that they have deemed the wearing or display of BLM paraphernalia in the workplace to be acceptable under the guidelines of the Hatch Act. (Government Executive)
Federal employees are permitted to wear or display Black Lives Matter paraphernalia in the workplace, as it is not an “inherently partisan” movement, according to the independent agency that oversees the Hatch Act prohibiting civil servants from participating in political activity while on the job.
The Office of Special Counsel released updated guidance on Wednesday on how the Hatch Act applies to the Black Lives Matter movement, as first reported by Federal News Network. The movement started in 2013 and has gained renewed prominence in the wake of nationwide protests for racial justice after police in Minneapolis killed George Floyd in May.
The OSC can get away with this because of the very careful wording they apply to their interpretation of the rules. The Hatch Act makes it fairly clear how and when employees cross the line in terms of partisan political speech or activity.
[Employees] May not engage in political activity while on duty, in the workplace, wearing a uniform or official insignia, or in a government vehicle. For example:
o May not wear, display, or distribute partisan materials or items.
o May not perform campaign-related chores.
o May not make political contributions.
o May not use email or social media to engage in political activity
In other words, displays that express support for a particular candidate or party in a partisan election are not permitted. But support for a particular issue that isn’t specifically and directly attached to one candidate or party is allowable. The OSC offers up the Tea Party movement in 2009 as a parallel example. They described it as “a leaderless movement that apparently arose in response to social concern.” Of course, the Tea Party was comprised almost entirely of a coalition of conservatives and libertarians who would generally be far more likely to vote Republican than Democrat, but it was totally unofficial. Democrats, needless to say, mocked or simply hated the Tea Party for the most part.
The Black Lives Matter movement is similarly (though not entirely) viewed as a left-side issue and most of the polling we’ve seen this year supports that belief. But, again, it’s not an official Democrat or Republican organization or political structure and is largely free of “official” leadership. In that regard, attempting to ban BLM paraphernalia would probably land the supervisor in the middle of a lawsuit.
That type of wiggle room works both ways. Federal employees are also allowed to wear or display pro-life or pro-abortion messages if they wish. But again, they can’t cross the line into endorsing specific candidates based on those beliefs. So all in all, we really can’t complain too much about this ruling from the OSC. It does seem to be in keeping with the current interpretation of the Hatch Act and with their previous rulings.