What Are Federal Employees’ Rights to Protest the Government Shutdown?

Standing up for your First Amendment right to protest can be challenging — especially if you’re a government employee.

Since Dec. 22, nearly 800,000 government employees nationwide have been affected by the partial federal government shutdown, putting a stop to work and paychecks. Despite President Trump’s claim that federal workers “agree 100 percent with what I’m doing,” many have wondered about their right to protest during the shutdown — and whether there could be workplace retaliation for doing so.

Here are some answers.

Can federal workers organize a protest to convince government leaders to end the shutdown?

Yes. While federal employees are subject to certain restrictions of their First Amendment free speech rights while functioning in their official capacity, they still retain the right to engage in free speech activities as private individuals.

That said, it would be smart to check any employment policies that may apply to ensure that such speech and expressive activity is not listed as a violation of an employee handbook or code of conduct. If such policies cover private speech on a matter of public concern, they are likely unconstitutional, but the government may nevertheless attempt to invoke them.

Can federal workers protest during the shutdown without repercussion?

The Supreme Court has repeatedly held that people do not surrender their First Amendment rights by accepting public employment. Courts have drawn a line between work time and private time, so any restrictions about what a federal government employee can do in their personal time would be problematic. But if a federal worker organizes a protest, it is important to make it clear that the participants are doing so on their own time and not in their official capacities.

What is the Hatch Act and how does it affect federal workers?

The Hatch Act prevents certain federal employees from engaging in partisan political activities, such as engaging in partisan actions while on duty or using the employee’s official authority to affect the outcome of an election. However, the law does not prohibit federal employees from engaging in a protest or speaking out on a political issue outside of work hours. 

Can a federal worker talk to the media about the shutdown?

When federal workers are speaking as government representatives in connection with their official duties, then the government has a much greater ability to regulate such speech. But when federal workers speak as private individuals and outside of the scope of their employment, then they retain the usual First Amendment protections.

That means that while the government may be able to limit federal workers from speaking out about their problems with particular coworkers or internal management decisions by their supervisors, for example, the government certainly can’t prohibit a federal worker from talking about how the shutdown has affected their life — for example, having difficulty paying bills or stress at home.

Can the government regulate the speech of any federal worker?

The government may claim it has additional power to regulate the speech of certain high-level officials because such positions require personal loyalty and confidence for proper functioning. This makes it more difficult for such employees to know when their speech is subject to regulation.

Overall, the First Amendment right to join together in protest or peaceful assembly is critical to a functioning democracy. These protests reflect the profound importance of our constitutional right to peaceful assembly where people come together, voice their dissent, and organize for change.

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Anonymous

More of a question. What recourse does a volunteer - someone working without pay and no expectation of being paid - have? Can they call in sick/not show up without calling?

Sue

Rules about sick leave vary locally, as do rules about whether volunteers are considered employees (and aomwhether they are covered by protections applying to employees). You can call your local representatives, check online about local rules, or contact your state and/or municipality’s labor department to learn about what rules apply where you are.

Anonymous

I would think that if you are a federal employee, and you are not being paid, that doesn't make you a volunteer. I know it feels that way, but legally I believe, you're still an employee and you still have all the rights and privileges of an employee. So I wouldn't play that card unless you want to move on.
That's why the ACLU can sue for "employees" pay. They can't sue for "volunteer" pay.
However, if you truly volunteer at an organization with no expectation or agreement from them of being paid, then call in.
If you have desirable skills, this would be a great time to work on your resume and apply for employment elsewhere, rather than be a political football.
Who knows if this will be the new "normal" of government employment.
There may be prospective employers who are sympathetic and you could use that angle.

Anonymous

General answer - not showing up without calling in can be considered abandoning your job. Not sure if this is true in this situation or not, but it could be, so don't be surprised if you don't have a job after the shutdown if you do this.

Calling in sick can also be problematic. Where I worked, if you called in sick more than three days in a row, you had to bring a doctor's statement when you returned. Your employer's employee handbook should tell you what is required.

Caveat: you need to do research on your particular situation. Get a copy of your employee handbook and check, and you might even want to consult an attorney. (Yes, I know, who has money for an attorney? Hopefully your employee handbook is clear enough, but don't be surprised at anything when the shutdown ends if you've called in sick or just not shown up.)

Having had personnel as part of my job in the past, I have to say the multiple shutdowns don't bode well for keeping the good employees, or for attracting good employees in the future. Great way to run a business ...

Ms. Gloria Anasyrma

Finally we have a president with pizzazz. We have not had a president with pizzazz since John Kennedy.

Inga Jablonsky

Maybe you noticed, Gloria, that this article is not about Trump but about the furloughed Federal employees. So I don't think your rah-rah call is appropriate in the face of these people's fate.

Anonymous

Are you going without a paycheck? Are you concerned about having your bills paid? Put yourself in these peoples shoes and then see if this president has pizzazz!!!

Charles Ray

What we have is a president that has a long history of doing business with and for an adversary of the United States (Russia). His foolish statements that this will stop drug trafficking is absurd being as the majority of illegal drugs in this country come through airports and seaports. Russia is the #1 supplier of fentanyl, through it's crime syndicate that has infiltrated America and with whom Donald Trump has close ties and financial connections. So if this is your idea of 'pizzaz' you are correct. He's full of it.

Anonymous

The lack of it is more appropriate. Trump is a dictator, and you and everyone else damn knows it!

Anonymous

Do you want a person in charge with pizzazz as you say, or one that knows what they are doing? Also, please don't mention him in the same sentence as JFK

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