Is Black Lives Matter a “Matter” of Concern for Federal Employers and Employees under the Hatch Act?
The Hatch Act, passed in 1939, limits certain political activities of federal employees, as well as some state, D.C., and local government employees who work in connection with federally funded programs. The law ensures that federal programs are administered in a nonpartisan fashion. It intends 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. Read more on the Hatch Act here.
Today, July 10, 2020, the U.S. Office of Special Counsel (OSC) issued guidance on two questions relevant to current events. In this post, we focus on the first—whether Black Lives Matter (BLM) is a partisan political organization for purposes of the Hatch Act, which prohibits federal employees from certain political activities.
The short answer is no. OSC determined that Black Lives Matter (BLM) is not a partisan political organization at this time. Thus, federal employees are free to express their support through personal expression. However, it is important to note that the phrase “at this time” potentially serves as an exception should components of the BLM Movement actively endorse or solicit support for political candidates in upcoming elections.
How does this impact federal employees who advocate for BLM?
Currently, employees are not prohibited by the Hatch Act from expressing support for, or opposition to, the BLM movement while on duty or in the workplace. However, employees should understand that this assessment is subject to a fact specific analysis where advocacy for specific political candidates may arise. For example, if on duty, an employee may not use his or her support for the BLM Movement to advocate for or against a particular candidate or political party.
How did OSC arrive at this conclusion?
In determining whether an organization serves or acts in furtherance of a partisan political purpose, OSC considers: (1) Whether the organization is affiliated with a political party or candidate; (2) Whether the organization is organized for partisan political purpose, or; (3) Whether the organization engages in engage in partisan political activity. More specifically, the OSC asks does the organization identify itself as supporting or opposing a political party or candidate? Do the contents of the organization’s charter, bylaws, mission statement, or amendments refer to a political party or candidate?
Provided there is no change in the current status of the BLM Movement or its chapters. Federal employees should not be subjected to scrutiny or disparate treatment as a result of their support or engagement in BLM activities provided they do not violate any laws or other terms of employment.
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