Federal government employees have the right to express themselves and engage in advocacy activity outside of work, subject to some limitations. While off duty, federal employees may participate in a wide range of activity, including many kinds of political activity. While on duty, federal employees cannot engage in political activity, but the definition of prohibited political activity is narrower than some people realize.
This page provides a summary of the rules regarding advocacy and self-expression (including political activity). Much of the information on this page is drawn from a helpful guide published by the Office of Special Counsel, which you can access here. For detailed information, consult that guide and other resources listed at the bottom of this page.
This page covers the following topics:
- What are the legal limits regarding federal employees’ ability to engage in advocacy and self-expression?
- What are the legal protections for federal employees who engage in advocacy and self-expression?
- What types of advocacy and self-expression can I engage in while off duty?
- What types of advocacy and self-expression can I engage in while on duty?
- What can I post on social media?
- Resources for more detailed information
The information on this page is current as of March 25, 2018. If a link on this page has stopped working, you may be able to access the link through a “perma link” we created, which you can find at the bottom of this page.
1. What are the legal limits regarding federal employees’ ability to engage in advocacy and self-expression?
The Hatch Act establishes certain limitations on federal employees’ ability to engage in political activity. But the Act allows federal employees to engage in many types of advocacy and self-expression. For most employees, the Hatch Act only applies to activities that are directed to the success or failure of a political candidate or party. It does not, in other words, apply to nonpartisan issue advocacy or other speech on issues of public concern.
Below, we provide more information and examples regarding permitted and prohibited activities. A comprehensive guide to the Hatch Act is available here.
All civilian employees in the executive branch of the federal government, except the President and the Vice President, are covered by the provisions of the Hatch Act. Part-time employees are covered by the Act. Federal employees subject to the Hatch Act continue to be covered while on annual leave, sick leave, leave without pay, or furlough.
Employees who work on an occasional or irregular basis, or who are special government employees, are subject to the restrictions only when they are engaged in government business. (See 18 U. S.C. § 202(a).)
Under the Hatch Act, all federal employees are divided into two categories: Further Restricted Employees and Less Restricted Employees. A list of who qualifies as a Further Restricted Employee can be found here and includes employees at the Central Intelligence Agency, National Security Agency, Federal Bureau of Investigation, Federal Election Commission, and certain positions at the Department of Justice.
2. What are the legal protections for federal employees who engage in advocacy and self-expression?
When engaging in advocacy and self-expression that is allowed by the Hatch Act (see more detail below), federal employees have rights under the First Amendment. This protection generally extends to activities that occur off duty, address issues of public concern, and do not interfere with the employee’s duties or disrupt the workplace. The government cannot terminate, discipline, or otherwise retaliate against an employee for engaging in activity protected by the First Amendment.
The D.C. chapter of the ACLU provides a helpful guide with more information about the First Amendment rights of government employees. If you have questions about whether your activity is protected, consider consulting an attorney or contacting an organization like the ACLU.
If a federal agency takes action against an employee for engaging in advocacy or self-expression, the employee may be able to challenge that action in various ways. First, if you are disciplined or terminated for your beliefs or advocacy, you may be able to appeal to the federal Merit Systems Protection Board, or MSPB. You can find more information in an FAQ published by the MSPB. Second, if your activities constitute whistleblowing, you can file a claim with the federal Office of Special Counsel. See our page on whistleblowing here. Third, if you are represented by a union, you may be able to challenge the action through the grievance procedure in a collective bargaining agreement. Fourth, you may be able to pursue a lawsuit in federal court. A lawyer can provide more information on these options.
3. What types of advocacy and self-expression can I engage in while off duty?
Federal government employees can engage in most kinds of advocacy and self-expression–including many kinds of political activity–while off duty and not acting in an official capacity, without violating the Hatch Act. This includes activity and expression critical of the government.
To be considered “off duty,” you should ensure that you are outside of work hours, away from your workplace, and not acting in an official capacity (e.g., not using your official title or government email account or device). If you have questions about what counts as “off duty,” consider contacting the government’s Office of Special Counsel or an attorney.
While off duty, federal employees can engage in activities such as attending political rallies, meetings, protests and fundraisers; calling their elected representatives; signing petitions; contributing money to political campaigns; expressing opinions about candidates and issues; and voting.
However, under the Hatch Act, federal employees should refrain from engaging in the following types of activities, even while off duty:
- Use their official authority or influence to interfere with or affect the result of an election.
- Solicit, accept or receive a donation or contribution for a partisan political party, candidate for partisan political office, or partisan political group.
- Be candidates for public office in partisan political elections, although a federal employee may be able to run as an “independent,” depending on where the employee lives. (5 C.F.R. 7325)
- Knowingly solicit or discourage the participation in any political activity of anyone who has business pending before their employing office.
- Engage in political activity in any federal room or building, or while wearing a uniform or official insignia, or using any federally owned or leased vehicle.
In addition, employees considered “Further Restricted Employees” are prohibited under the Hatch Act from doing certain additional political activities off duty. You can find more information here regarding which employees are “Further Restricted” and what restrictions apply.
4. What types of advocacy and self-expression can I engage in while on duty?
The Hatch Act prohibits political activity while a federal employee is on duty. Political activity is activity directed at the success or failure of a political party, partisan political group, or candidate for partisan political office. For example, while at work employees may not urge others to vote for a particular candidate or party.
Because the Hatch Act is limited to political activity, as defined above, it does not prohibit federal employees from expressing their personal opinions about events, issues, or matters, such as healthcare reform, gun control, abortion, immigration, federal hiring freeze, etc. Such comments at work, however, cannot be directed at the success or failure of a political party, candidate, or group.
The Office of Special Counsel has advised that “even when federal employees are expressing personal opinions that are permissible under the Hatch Act they should be mindful of how such views may be received by their coworkers and whether such comments are consistent with the Hatch Act’s underlying purpose of maintaining a politically neutral workplace.” Moreover, the First Amendment provides more limited protection for on-duty speech as compared to off-duty speech.
5. What can I post on social media?
The guide provides the following summary (emphasis added):
Federal employees may 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. Specifically, the Hatch Act prohibits employees from:
(1) engaging in any political activity via Facebook or Twitter while on duty or in the workplace;
(2) referring to their official titles or positions while engaged in political activity at any time (note that inclusion of an employee’s official title or position on one’s social media profile, without more, is not an improper use of official authority); and
(3) suggesting or asking anyone to make political contributions at any time. Thus, they should neither provide links to the political contribution page of any partisan group or candidate in a partisan race nor “like,” “share,” or “retweet” a solicitation from one of those entities, including an invitation to a political fundraising event. An employee, however, may accept an invitation to a political fundraising event from such entities via Facebook or Twitter.
Further Restricted Employees also may 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. In addition to the limitations above, the Hatch Act prohibits further restricted employees from:
(1) posting or linking to campaign or other partisan material of a partisan group or candidate in a partisan race;
(2) “sharing” these entities’ Facebook pages or their content; and
(3) “retweeting” posts from these entities’ Twitter accounts.
6. Resources for more detailed information
Note that if a link on this page has stopped working, you may be able to access the link through the “perma link”, which we have provided for selected resources.
Information regarding the Hatch Act:
- Guide to the Hatch Act from the Office of Special Counsel (perma link)
- Frequently Asked Questions on use of social media and email from the Office of Special Counsel (perma link)
Information regarding the First Amendment rights of government employees:
[Image from Pixabay user geralt.]