For Want of a Comma $5 Million Was Lost

English majors and writers all over the world know the value of and cherish the Oxford comma. But I doubt anyone knows its true worth more than a Maine dairy company that had to fork over $5 Million to its truck drivers because an overtime law failed to include an Oxford comma in its lists of employees who are exempt from overtime laws. Before we discuss the case, a quick lesson on the Oxford or serial comma. The comma is used after the penultimate (next-to-last) item in a list or series. For example in a list of side dishes at a restaurant that reads “french fries, rice, stringbeans, and glazed carrots” the last comma tells you that the list contains four items: fries, rice, stringbeans, carrots” and not three items: fries, rice and “stringbeans and carrots.” Here endeth the lesson.

The case involved a class-action lawsuit against Oakhurst Dairy, about overtime pay for truck drivers who were seeking more than four years’ worth of overtime pay that they had been denied. Maine law requires workers to be paid 1.5 times their normal rate for each hour worked after 40 hours, but it carves out some exemptions for certain workers engaged in certain activities including:

The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of:

(1) Agricultural produce;

(2) Meat and fish products; and

(3) Perishable foods.

So without the Oxford comma the last item in the list appears to exempt workers who “PACK for shipment or distribution” But if the Oxford comma had been used it would exempt employees engaged in “storing, packing for shipment, and distribution of . . .” .

The drivers distribute perishable foods, but they don’t pack the boxes for shipment or distribution themselves. Whether the drivers were subject to a law that had denied them thousands of dollars a year depended entirely on how the sentence was read. What’s interesting ( at least to me, a word nerd) is that the language in the law followed guidelines in the Maine Legislative Drafting Manual, which specifically instructs lawmakers to not use the Oxford comma. The manual instructs: “Don’t write ‘trailers, semitrailers, and pole trailers, instead, write ‘trailers, semitrailers and pole trailers.'” The manual does clarify that caution should be taken if an item in the series is modified. Commas, it notes, “are the most misused and misunderstood punctuation marks in legal drafting and, perhaps, the English language. Use them thoughtfully and sparingly.” The lower court relied on the manual’s distaste for the Oxford comma to rule in favor of the company and finding that the drivers were exempt employees because they distributed the goods. But the First Circuit Court of Appeals said they must read the law as written and since it is ambiguous, it must side with the drivers. In addition, the court liked a second grammatical argument made by the drivers:

Next, the drivers point to the exemption’s grammar.The drivers note that each of the terms in Exemption F that indisputably names an exempt activity — “canning, processing,preserving,” and so forth on through “packing” — is a gerund.By, contrast, “distribution” is not. And neither is “shipment.” In fact, those are the only non-gerund nouns in the exemption, other than the ones that name various foods.Thus, the drivers argue, in accord with what is known as the parallel usage convention, that “distribution” and “shipment” must be playing the same grammatical role — and one distinct from the role that the gerunds play. See The Chicago Manual of Style § 5.212 (16th ed. 2010) (“Every element of a parallel series must be a functional match of the others (word,phrase, clause, sentence) and serve the same grammatical
function in the sentence (e.g., noun, verb, adjective, adverb).”). In accord with that convention, the drivers read “shipment” and “distribution” each to be objects of the preposition “for” that describes the exempt activity of “packing.” And the drivers read the gerunds each to be referring to stand-alone, exempt activities — “canning, preserving . . . .”

So, the drivers argued, if the legislature meant to exclude their activity it should have read “packing for shipment and distributing . . ” The default rule of construction under Maine law for
ambiguous provisions in the state’s wage and hour laws is that they “should be liberally construed to further the beneficent purposes for which they are enacted.” That meant that ties go to the employees or in this case the truckers.

The drivers, who earned between $46,800 and $52,000 per year without overtime, worked an average of 12 extra hours a week. Oakhurst, a longtime family business that was acquired by Dairy Farmers of America in 2014, employs about 200 people and has annual sales of $110 million, selling dairy products throughout New England, according to its website. The court sent the matter back down for a determination of damages which could have totaled $10 Million. The company decided to cut its losses and settled for $5 Million to be split among 72 drivers. So for litigants look ing to either bring or defend actions involving convoluted phrasing of laws they would be wise to choose a lawyer familiar with procedure, policy, law, and rules of English grammar.

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