So you’re a federal employee who wants to speak to the media…

JAN 24, 2019 | COWORKER.ORG

We did some research and peppered lawyers with questions about what federal employees are allowed to do in protesting the government shutdown. Here’s what we found.

We’re in the midst of the longest federal government shutdown in United States history. People everywhere are hurting. Furloughed federal employees, now missing two paychecks, are angry and many are speaking out, attending rallies and protests, and doing whatever they can to persuade decision-makers in government to act and end the shutdown.

Public sector workers, including federal workers, do not surrender or otherwise lose their First Amendment rights by virtue of accepting public employment. To the contrary, in certain instances public sector workers have rights above and beyond those of the private sector workers because the government is restricted in certain ways that private employers are not.

The right of public sector workers to speak is generally governed by two seminal Supreme Court cases called Garcetti and Pickering. In Pickering, a public school teacher wrote an op-ed in a local newspaper criticizing the manner in which the school board allocated education funds and was subsequently fired by the school. The Supreme Court held that when a public employee is speaking on a matter of public concern that does not directly involve or interfere with the employee’s job responsibilities — like school funding — that public employee has the same speech rights as a member of the general public. In Garcetti, a prosecutor became troubled when he uncovered a seemingly false affidavit that the state planned to use in its case. When the state refused to dismiss the case, he alerted defense counsel and was subsequently fired. The Supreme Court held that the termination was justified because his actions related directly to his job responsibilities as a prosecutor. This is the general framework governing free speech rights in public sector employment.

Public sector workers have to be careful not to use their employer resources to support partisan politics. This prohibition comes from the Hatch Act. Certain employees are considered “further restricted” under the Hatch Act and may not engage in certain other actions, like linking to party websites, even if completely done on private time.

Every federal employee should consult their own agency’s rules and regulations for their specific job title, as they may differ. For example, certain particularly senior federal workers are subject to additional restrictions, which will not be discussed below.

In addition to federal workers, a lot of federal contractors are also impacted by the shutdown. Employees of these private contractors are differently situated than federal employees and their rights are more readily analyzed under the NLRA and other federal employment laws.

1. May a furloughed federal employee engage in commentary about the shutdown on Facebook or Twitter?

Generally speaking, yes. The shutdown is a matter of public concern unlikely to be connected to the worker’s job responsibilities. Therefore, for most federal workers, this falls comfortably under the protection of the First Amendment. There are several caveats to keep in mind. First, if they are commenting on a partisan post or in a partisan manner, they should make sure not to use any work resources. Further-restricted employees may not be able to comment on the shutdown in certain partisan ways, such as linking to the content of a partisan group.

2. May a furloughed federal employee mention their job title or any other employment-related information (e.g. simply that they work for the federal government) while commenting on the shutdown on social media (including on partisan group pages)?

This practice should be avoided, particularly in connection to partisan group pages. A federal employee’s title is a work resource that cannot be used in connection with partisan politics. It is difficult to talk about the shutdown without discussing partisan politics, so use of a title should be avoided.

3. May a furloughed federal employee attempt to raise money on sites like GoFundMe to cover costs during the government shutdown? Are there any known restrictions to this activity?

Raising money through a GoFundMe page could pose a problem due to issues related to conflicts of interest. Federal employees, subject to a few exceptions, may not accept gifts from an individual that is seeking action by, doing business with or regulated by the employee’s agency. Federal employees may also not accept gifts from individuals that have an interest that may be substantially affected by the federal employee’s performance or nonperformance of official duties.

Since GoFundMe pages are open to the public, it would difficult for a federal employee to regulate who contributes to the page and to determine whether the gift falls within any of the limited exceptions. Such a fundraising effort could put the employee at risk for possible ethics violations and would not be advised.

4. May a further restricted government employee post content online about the shutdown?

A further-restricted government employee can speak about the shutdown, but needs to be careful not to do in a way that could be construed as actively participating in partisan political management or a partisan political campaign. Further-restricted employees should not post or link to a partisan campaign or other partisan material, share partisan pages or their contents or retweet posts by partisan groups. Any posts should be made while the further-restricted employee is off-duty. Further-restricted employees are prohibited from organizing political rallies, but can attend a political rally while off-duty.

5. May a furloughed federal employee speak to the media about how they’ve personally been impacted by the shutdown? Understanding that each agency has its own rules, what general parameters should people follow when engaging media?

Generally speaking, yes. As with general commentary on the shutdown, the subject of how a federal worker has been impacted by the shutdown is a matter of public concern unlikely to be connected to the worker’s job responsibilities. As far as general guidelines go, the further away a worker stays from partisan politics, the safer the speech. Workers should also be aware of any issues regarding classified or sensitive information.

6. What kind of email content about the shutdown could be considered Hatch Act prohibited? For example, can an employee forward emails from her work address to colleagues inviting them to a shutdown-related event with partisan advocacy groups like MoveOn?

Federal employees should not use their work email accounts to discuss the shutdown, particularly with regards to partisan advocacy groups like MoveOn. Forwarding emails to colleagues is ill-advised, particularly to subordinates.

7. Would there be any reason why a furloughed federal employee could not attend a protest, rally, mass meeting, or other shutdown-related event?

No, even further-restricted employees are permitted to attend rallies and protests. Further-restricted employees should not speak at such events however.

8. Are there any other issues we should be aware of? What about speaking to the media anonymously? Sharing stories online anonymously? Any risk there?

The same considerations apply where an employee is speaking to the media or posting or sharing stories anonymously since an employee is still subject to the same restrictions detailed above even the speech is made anonymously. However, an anonymous post would likely generate a lower probability that the employee could be considered to be using his/her governmental position to participate in partisan politics.

Disclaimer: This post does not constitute legal advice.

Check out this campaign on Coworker.org calling for a raise for TSA agents after the government shutdown ends.

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