How does telework affect the Hatch Act? Election season do’s and don’ts

Updated July 2024

Election season is 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 in 2020 during the COVID-19 pandemic, the Office of Special Counsel issued guidance, underscoring that the rules are the same while working from home.

An OSC spokesperson in 2024 told Government Executive that the agency has not put out a new advisory since then regarding telework and that the 2020 guidance is still current. 

Still, there might be renewed questions, even if employees are back in the office for only some portion of the work week.

“In terms of teleworking, most of the [Hatch Act] prohibitions apply all the time,” an OSC  attorney explained in 2022. “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 post political messages on social media and they can’t wear 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 in 2022. “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 manner; 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 by email in 2024 that there are still a lot of “gray areas and pitfalls” with respect to the Hatch Act and telework.

She also warned that federal employees should be more cautious on social media. “The [OSC] has announced that it would increase its Hatch Act oversight and crack down on violations. The rules have not changed, but I think that this election cycle might have federal employees finding themselves facing discipline if they are not careful and intentional with their political social media use,” she wrote. 

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 in 2021 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.” 

Attorneys John Berry and Kimberly Berry of Berry & Berry PLLC, an employment and labor law firm, wrote in a 2022 post that “where agencies have established policies permitting limited personal use of government resources by their employees, those policies may authorize employees to access their personal social media accounts while on duty.” However they cautioned that “there is no right to privacy on work devices,” such as computers and phones. 

Most federal employees fall under the “less restricted” category and are afforded more ability to engage in off-the-job partisan political activity than those in the “further restricted” category, which includes federal employees at investigative and enforcement agencies. Federal employees should be aware that some agencies place employees in a further restricted category who otherwise would not be (for example the Justice, State, Homeland Security and Defense departments). Also, there are some exceptions to Hatch Act rules for political appointees. 

For more specific scenarios, OSC’s website has a frequently asked questions and answers section on social media and the Hatch Act.