As employees return to work the Monday after Thanksgiving, their minds (and electronic devices) may be focused on sales rather than work. Although some reports indicate that the best day for online deals will be Thanksgiving itself, Cyber Monday is still anticipated to be the biggest online shopping day of the year, with consumers spending approximately $2.6 billion online.


Cyber Monday is a potent reminder of the electronic temptation employees face at work. It is estimated that a staggering 75 percent of employees access social media using their personal devices while at work. Sixty-four percent of employees access non-work-related websites each day, either from their personal devices or work computers. The use of social media platforms often benefit the workplace – for example, increasing collaboration among co-workers and attracting young talent. But if left unchecked, personal electronic use becomes a significant drag on productivity, efficiency and quality of work. Before the New Year is a great time to revisit your electronic-use policies.

1. Understand Your Workforce

Social media and unfettered access to the Internet have permeated much of the United States’ labor force. For these individuals, strict electronic-use policies (no non-work-related Internet access) can detract talent and drive employees to alternative devices during the workday. Aside from the impact on recruitment, retention and morale, it is virtually impossible to fully enforce an absolute ban on personal Internet use on company-provided equipment. In addition, we are awaiting a decision from the NLRB in Purple Communications. The NLRB may require employers to grant employee access to company-provided email and other electronic communications to discuss wages, hours and working conditions.

2. Be Explicit

An important aspect of any employer policy is to state the terms of the policy clearly. Wherever your electronic-use policy falls on the spectrum, articulate it clearly to employees and incorporate it in your employee handbook.

3. If You Decide to Monitor Employee Computer Use – Use Caution

An employer may lawfully monitor all activity on its own system and equipment, provided it has an appropriately worded and effectively communicated policy in place. If you choose to monitor employee computer use, notify employees of the monitoring and inform them that continued employment constitutes their consent to the monitoring.

Be careful not to create unintended liability under discrimination laws. Consider the following scenario: you suspect that an employee is violating your electronic-use policy so you decide to monitor her Internet usage. During the course of your monitoring, you determine that the employee is violating the policy, but also that she suffers from depression. When she files a charge with the EEOC contesting her termination on disability discrimination ground, you must prove that the policy violation and not her disability motivated your decision to discharge her.

Finally, avoid unauthorized access to electronic information. An employer may monitor an employee’s non-work-related social media activity if it properly accesses information in the public domain, but avoid accessing privacy-protected material.

This holiday season, a well-drafted, consistently enforced, employee-consented electronic-use policy may be the best “deal” for your company.