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I have a love/hate relationship with my cell phone. I know it is a great business (and personal) tool which I use all the time, but it imposes on my life.  The current etiquette demands I have it by my side at all times so I see the messages instantly and respond quickly.   While I do this for business, I must admit I sometimes resent this.  I was reminded of this expectation at a wedding I just attended.  I heard a toast compliment the happy couple by declaring they are so in love that they actually enjoy an entire meal without looking at their phones.  I still say, what has happened to our world but that is our world and we need to address it.

So why is this an HR Attorney’s lament? Because this is a wage and hour pay issue.  People like me are scarce – everyone else is glued to the cell phone, which means when it buzzes, they react.  If this message involves work, payment may be due?  For exempt employees, this is no big deal.  But what about non-exempt employees – those who are paid by the hour for all hours worked?  These non-exempt employees need to be paid.  Does this mean companywide or any other work e-mails are not allowed after hours?  No, but kind of yes. 

A new rash of lawsuits claim hourly paid employees need to be paid for answering e-mails after working hours. This is even a problem when an exempt employee misses a whole day of work and the employer determines no pay is due.  That decision is wrong if the exempt employee worked any part of the missed day – such as when the employee answered an e-mail. 

So what is an employer to do? First decide if this happens at your business.  If not, maybe no change is warranted.  If so, consider the following.  First, tell and memorialize the message that hourly employees should not respond to e-mails after normal working hours (unless you plan to pay for this, and then you’ll need accurate records which the employee should complete the following day).  When this rule is broken, as it invariably will be, thank the employee for the great attitude, but remind him/her of your policy.  Explain how unfair it is to ask people to work without paying them and therefore you ask the employee to wait for working time to read the e-mails. 

Second, teach the rest of your team not to send off hour missives to any hourly paid employees. Even though the message could be read later, you are tempting fate when you send it off hours.  If you need to send messages off hours, include a subject entry explaining this should be read during working hours only. Will people think you are crazy?  Maybe.  Like so many other issues HR addresses, it is a new world and new standards and understanding are needed. 

Third, tell and document the expectation that non-exempt employees should not address e-mails on any normal working day when they are not being paid. Again, if they are not paid, it is unfair to ask them to work. 

While this is a hard standard to implement for some companies, consider it part of your effort to balance work and personal life. This is something psychologically easier to accept than the nuances of wage and hour laws.  It also does not suggest any prior wrong-doing but merely enlightenment (a development your employees might appreciate).  Good luck.