1. Does the post address wages or working conditions? Individual comments by an employee unrelated to working conditions would not be protected.
2. What is the context? Some individual posts may not appear to be protected, but in the context of a broader employee discussion, could be viewed as protected.
3. Does the post trigger an obligation to act? If the post can be properly construed as harassing or contributing to a hostile work environment, the employer may be able to address the issue and attempt to stop the harassment.
4. Who is doing the posting? Supervisors are not protected by the NLRA, but they may be protected by other laws (i.e., whistleblower laws).
5. What about the employer’s reputation? When an employer thinks about its social media reputation, it tends to focus on what’s embarrassing about the post itself. But, employers also should consider the social media ramifications if it disciplines the employee given the intense public interest in social media firings and the resulting NLRB scrutiny.

Furthermore, employer social media policies should not be so sweeping that they prohibit the discussion of wages or working conditions among employees. The General Counsel has indicated that specific, robust and appropriately placed section 7 disclaimers may be useful. Employers should consider specifically including language stating that nothing in the employer’s social media policy is intended to infringe on the rights of employees to discuss wages, hours or working conditions, although this disclaimer may not serve to protect an otherwise unlawful policy. The OGC also indicated that employers should give examples in their policies of conduct that would be prohibited and not run afoul of section 7.

• Consult legal counsel when drafting social media policies. Remember, these protections apply even to non-union workplaces.