Black Lives Matter and the Hatch Act

United States Office of Special Counsel (OSC) advisory opinions dated July 10, 2020 address what is a partisan political group for purposes of the Hatch Act and whether the Black Lives Matter movement is a partisan political group pursuant to the Hatch Act. Numerous federal employees had asked OSC whether Black Lives Matter (BLM) or related materials raise any Hatch Act concerns when used or displayed while on duty or in the federal workplace. In its partisan political group opinion OSC applied its complex partisan group guidelines to opine whether certain other (not BLM) nonprofit organizations were partisan political organizations. In its BLM opinion, OSC used these guidelines to decide whether using BLM terminology is inherently political activity. It also decided whether the Black Lives Matter Global Network (BLMGN)— a prominent BLM-related organization—is a partisan political group.

OSC decided that: (See, July 10, 2020 Advisory Opinion Black Lives Matter and the Hatch Act.)

“[U]sing BLM terminology is not inherently political activity and BLMGN is not currently a partisan political group. Accordingly, the Hatch Act generally allows employees to engage in BLM-related activity while on duty or in the workplace. But, as described below, 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. “Political activity” is an activity directed toward the success or failure of a political party, candidate for partisan political office, or partisan political group.”

OSC concluded its Black Lives Matter opinion to state:

“BLM is a “hot-button” issue and both politically and culturally salient. But BLM terminology is issue-based, not a campaign slogan. Therefore, using BLM terminology, without more, is not political activity. BLMGN does not meet any of the criteria for classification as a partisan political group. Therefore, BLMGN is not a partisan political group, and employees are not prohibited from wearing or displaying BLMGN paraphernalia in the workplace.”

Practical advice: It does not violate Government ethics and Hatch Act rules to proceed as OSC has opined. But also, note it is a “hot button” issue. In some cases, employees with personal (not work related) opinions have workplace problems. In my experience, often the personal opinion or view is not the problem: It is how it is expressed. As I tell some clients: “Do not (figuratively) stick your finger in [his or her/their] eye.”

If you do experience work place issues, call an experienced employment attorney, but on this issue, hopefully, you will not need an attorney.

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