shaw bransford & roth case law update

OSC Updates Guidance and Issues Advisory Opinion on Social Media Activity for Presidential Campaign Season

In anticipation of the 2016 U.S. Presidential election, the United States Office of Special Counsel issued updated guidance regarding federal employee use of social media and email concerning presidential candidates.

Federal employees are at risk of violating the Hatch Act if they engage in political activity while on duty (i.e. while telecommuting or in a pay status other than paid leave) or in the workplace, said O.S.C. in a November 12, 2015, press release. While most of OSC’s guidance remained unchanged, several revisions to the guidance addressed the use of social media accounts like Facebook and Twitter.

For example, OSC stated that federal employees “may display campaign logos or candidate photographs as their cover or header photo situated at the top of their social media profiles on their personal Facebook or Twitter accounts.” However, OSC further explained that while a candidate photo is serving as their cover or header photo, or avatar, employees are not permitted to post, share, tweet, or retweet any items on Facebook or Twitter while on duty. OSC reasoned that because a candidate’s photo is serving as the employee’s profile photo, any action taken on the social media account with that profile photo would “show [the employee’s] support for a partisan group or candidate in a partisan race, even if the content of the action is not about those entities.”

Some federal employees (mostly in law enforcement and intelligence agencies) are “further restricted” from actively participating in partisan political management and campaigning via 5 U.S.C. §7323(b)(2) and 5 C.F.R. § 734.401(a). These “further restricted” employees may “like” a social media post from a candidate or partisan group, and may even comment on the candidate’s social media pages when not at work, per the Office of Special Counsel. However, OSC observes that no federal employee, further restricted or otherwise, may “like a “post soliciting for partisan political contributions at any time.”

Less than two weeks after the November 12, 2015, press release announcing its updated guidance, OSC issued an advisory opinion concerning the ability of “further restricted” employees to use social media to engage in political activity. Specifically, OSC stated that “further restricted” employees are prohibited from engaging in any political activity that is “in concert” with a candidate, party, or partisan group.

The opinion stated that when using Facebook, “further restricted” employees may not “post or link to the campaign or other partisan material of a political party, partisan group, or candidate for partisan political office,” nor may they “share” Facebook content from the above-described entities. For Twitter, “further restricted” employees may not retweet posts from these entities’ Twitter account. All of the above actions, per OSC, would constitute political activity that is “in concert” with a political party, group, or candidate, as would volunteering for a partisan, making a speech on behalf of a candidate, or distributing campaign literature.

However, the advisory opinion differentiated the above activity from proper activity by employees who, while off duty and away from the workplace, posts thoughts about a Presidential candidate, “share” a friend’s endorsement of a political party, or hit the “like” button on a candidate’s Facebook page.

Read the full advisory opinion: OSC File No. AD-16-xxxx


This case law update was written by Conor D. Dirks, associate attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

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