Fedweek

OSC: A federal employee is not prohibited by the Hatch Act from expressing support for, or opposition to, the BLM movement while on duty or in the workplace, nor is there a prohibition on wearing or displaying BLM paraphernalia in the workplace.

Using the same logic it applied regarding the Tea Party movement, the Office of Special Counsel has said that the Black Lives Matter movement is not a partisan political group for Hatch Act purposes and that “using BLM terminology is not inherently political activity.”

The guidance says that Black Lives Matter is “an umbrella term for a constellation of ideas, objectives, and groups”—and that the Black Lives Matter Global Network, which is “arguably the most prominent” of the related organizations, “has not endorsed any individual candidates or, more broadly, those of any particular party.” Similarly, OSC said, its activities such as issue advocacy and voter registration campaigns do not identify with “any particular politicians or political parties.”

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Said the guidance, “Unlike campaign slogans, phrases related to issues—even politically charged issues—generally do not meet the definition of political activity. For example, the Tea Party movement rose to prominence during the Obama Administration in large part as a response to federal taxing and spending policies. Because of this issue-focused origin, OSC could not conclude that the movement itself was inherently partisan as opposed to issue-based. Accordingly, OSC repeatedly found that mere use of the phrase “Tea Party” by federal employees while on duty or in the workplace was not prohibited by the Hatch Act.”

“Like any number of prominent politically active organizations—such as the National Rifle Association and Planned Parenthood—BLMGN is popularly associated more frequently with one political party versus another. But that does not make it a “partisan political group” for purposes of the Hatch Act. Considering that BLMGN is overwhelmingly focused on policy issues, not on promoting or opposing political parties or candidates for partisan political office, it is not a partisan political group at this time,” the guidance says.

It concluded that a federal employee “is not prohibited by the Hatch Act from expressing support for, or opposition to, the BLM movement while on duty or in the workplace” and that they “are not prohibited from wearing or displaying BLMGN paraphernalia in the workplace.”

However, it added that federal employees “are still prohibited from combining BLM-related activity with political activity while on duty or in the workplace and from engaging in partisan political fundraising in connection with BLM related organizations.” An employee “may not say, for example, “if you believe that Black Lives Matter, then you should vote for/against X in November,” it says.

Also, if BLMGN were to host a fundraiser to support a candidate for partisan political office, the Hatch Act would prohibit an employee from advertising, promoting, or inviting others to attend that fundraiser,” it says.

It added that if the group’s “activities change in the future, then OSC would need to reevaluate the group based upon those changed circumstances.”

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2020 Federal Employees Handbook