OSC Issues Guidance on Black Lives Matter, Hatch Act

In guidance issued last Tuesday, the Office of Special Counsel (OSC) clarified questions relating to use and displays of the phrase “Black Lives Matter” (BLM) while on duty or in the federal workplace. The guidance addresses two central questions: whether BLM terminology is inherently political activity and whether the Black Lives Matter Global Network (BLMGN) is a partisan political group. OSC found the answer to both questions to be no, which under the Hatch Act generally allows employees to engage in BLM-related activity while on duty or in the workplace.

Under the Hatch Act, federal employees are barred from engaging in “political activity” while on duty or in the workplace. According to the guidance issued by OSC, “political activity” is defined as “an activity directed toward the success or failure of a political party, candidate for partisan political office, or partisan political group.”

The guidance provides background on BLM which explains, “The movement appears to have begun organically on social media. The phrase ‘Black Lives Matter’ then became a rallying cry for protesters and organizations seeking to raise awareness of, and respond to, issues associated with racism in the United States. BLM is thus an umbrella term for a constellation of ideas, objectives, and groups. There is no ‘leader’ of the BLM movement. Rather, there are numerous organizations that use BLM terminology to varying degrees, including some whose names include the phrase ‘Black Lives Matter.’ Of these, the most prominent is the BLMGN.”

In determining that the BLMGN is not a partisan political group, OSC noted that the group has not previously been involved in partisan political activity, did not endorse any candidates in 2016 after meeting with candidates from both major political parties, and “expressly disavowed” a Democratic party statement of support. The report also notes that the group’s website is almost entirely focused on issue advocacy.

The only express reference to political parties that was found on the website is the statement, “We are [moving forward towards justice] through our continued fight against elected officials, be it Democrat or Republican, who don’t share a vision that is radical and intersectional.”

In order to be considered a partisan political group under the Hatch Act a group must (1) be affiliated with a political party or candidate for partisan political office, (2) be organized for a partisan purpose, or (3) engage in partisan political activity.

The guidance explains, “The Hatch Act does not prohibit employees from engaging in issue based advocacy, such as activity in relation to an issue not specifically identified with a political party or partisan political group. Because using BLM terminology is not inherently political activity, and because BLMGN is not a partisan political group, the Hatch Act has only limited application to BLM-related activity.”

However, the guidance does caution employees against combining BLM-related activity with “political activity” while on duty.

For example, while an employee can express support or opposition to the BLM movement, an employee may not make a statement such as “if you believe that Black Lives Matter, then you should vote for/against X in November.” Similarly, OSC explained that if BLMGN were to host a fundraiser that solely benefited the organization itself, then employees could invite others to the event; however, if BLMGN hosted a fundraiser in support of a candidate for partisan political office, then the Hatch Act would prohibit employees from advertising, promoting, or inviting others to attend the event.

Under this guidance, employees are not prohibited from wearing or displaying BLM or BLMGN paraphernalia. OSC recommended that individuals consult their agency ethics offices with additional questions.