Applying the Hatch Act to teleworkers is not as simple as it seems.
Applying the Hatch Act to telecommuting federal workers is stirring some discussion this year: While the leader of recent federal training session on the subject asserted that teleworker compliance is straightforward, others in a recent congressional hearing suggested some fine points may need to be clarified.
Under the Hatch Act of 1939, updated in 1993, federal employees are prohibited from engaging in partisan political activity while on duty, while wearing an official uniform or while in a federal building or vehicle. The restrictions do not apply to activity after work hours.
Even though social media, blogs and other online community tools did not exist when the law was last revised, they fit into its structure. For example, a federal employee may “like” a political candidate’s Facebook page or retweet a candidate’s tweet after hours, but not while on duty. Intelligence and enforcement workers, and career executives, have more restrictions.
But now, the rise in telework is causing more people to ask questions about how the Hatch Act is applied to telecommuters, Leslie Gogan, attorney for the Hatch Act unit of the Office of Special Counsel, said in a training session published on Howto.gov on May 17. The webinar was sponsored by the Federal Web Managers Council and General Services Administration.
“We get a lot of questions about telecommuting,” Gogan said in the webinar.
But the basic rules still apply, she said. An employee's home does not become an official office or federal building when the employee teleworks, she said. However, telecommuting workers must be very strict about managing their on-duty and off-duty time and make a clear distinction between the two, Gogan added.
“Federal employees must be cognizant when they do telecommute of when they are on duty and when they are not on duty,” Gogan said. “They can only participate in political activity when they are off duty. So if you want to make a post to your timeline on Facebook, or if you want to send out a tweet advocating for or against a party or a candidate you have to do it when you are off duty.”
However, Carolyn Lerner, special counsel, said in a recent congressional hearing that Congress may want to add clarifying language to the Hatch Act to make it more explicit how it applies to teleworkers.
“The restriction on political activity can be confusing given technology-driven workplace developments not anticipated in 1993, when Congress last reformed the Hatch Act,” Lerner said at a May 16 hearing of the House Oversight and Government Reform subcommittee on the federal workforce, U.S. Postal Service and labor policy.
For example, while an employee homes do not meet the definition of federal workplace under the Hatch Act, there is confusion about the application of the “on-duty” political activity prohibition to the telework model, Lerner said.
“While extending the definition of the federal workplace to an employee’s home would be inappropriate, Congress may want to consider clarifying that the 'on-duty' political activity prohibition applies to an employee while teleworking,” Lerner said at the hearing.
Rep. Dennis Ross, R-Florida, who chairs the subcommittee, said an update to the Hatch Act is needed to reflect today’s workplaces.
“Comprehensive reform should, for example, adopt a definition of ‘federal workplace,’ that accounts for how federal employees communicate today – which is oftentimes out of the office, on the go, with personal electronic devices,” Ross said in his opening remarks at the hearing.
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