Law’s Missing Comma Could Cost Employer Millions

If only the state legislature had used a bulleted list …

Allen Smith, J.D. By Allen Smith, J.D. March 22, 2017
Law’s Missing Comma Could Cost Employer Millions

​Punctuation matters, as shown by a 29-page decision upon the absence of a comma from a Maine wage and hour statute that could cost the employer millions.

The 1st U.S. Circuit Court of Appeals ruled on March 13 that because Maine lawmakers did not put a comma before the conjunction in a list of exempt activities, the meaning of the last term in the list was unclear. Because of this ambiguity, the court reversed a lower court's judgment for an employer and, interpreting the statute liberally, held that the plaintiffs were nonexempt and thus eligible for overtime pay (O'Connor v. Oakhurst Dairy, No. 16-1901).

"If the Maine legislature here had clearly delineated the activities it intended to exempt from the state's overtime law, it would have removed the economic incentive for the plaintiff truck drivers to initiate a class action that [could] cost their employer $10 million in unpaid overtime—clearly not a humorous matter for the employer," said Daniel Schlein, an attorney in New York City.  

"The wrong word placement, punctuation or abbreviation can make a big difference in employment agreements and employment policies," said Jonathan Segal, an attorney with Duane Morris in Philadelphia and New York City. 

"We've all seen examples of amusing grammar memes on social media—'I love cooking, my dogs, and my family' versus 'I love cooking my dogs and my family,' " said Patricia Wise, an attorney with Niehaus Wise & Kalas in Toledo, Ohio. "Commas are important, but who knew they could be worth millions of dollars? Actually, human resource professionals probably do know that, but hopefully not from personal experience."

'Packing for Shipment or Distribution'

In this case, the Maine statute creates an exemption for employees whose work involves "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" (emphasis added).

Delivery drivers for Oakhurst, a dairy company in Portland, Maine, claimed they were unlawfully denied overtime, while the company maintained that the exemption applied to them.

[SHRM members-only toolkit: Determining Overtime Eligibility in the United States]

The drivers asserted that the exemption did not apply to them because the law's reference to "distribution" described one of the two things packing was for and was not a stand-alone exempt activity. The employer argued that distribution was a stand-alone exempt activity—something that would have been clear had the word "or" been preceded by a comma.

Linguistic Conventions

The court considered a number of linguistic conventions to decipher the meaning of "packing for shipment or distribution."

Oakhurst argued that under the rule against surplusage, "distribution" clearly is a stand-alone exemption. Oakhurst argued that "shipment" and "distribution" are synonyms. Therefore, "distribution" cannot describe a type of packing, as the word "distribution" would redundantly perform the role that "shipment" serves, which is to describe the type of packing that is exempt.

However, the drivers argued that "shipment" and "distribution" are not synonyms. "Shipment" refers to the outsourcing of the delivery of goods to a third-party carrier for transportation, while "distribution" refers to a seller's in-house transportation of products directly to recipients, they maintained.

The court agreed with the drivers on this point. "Because Maine law elsewhere treats 'shipment' and 'distribution' as if they are separate activities in a list, we do not see why we must assume that the Maine legislature did not treat them that way here as well," the court stated.

Oakhurst also asserted the convention of using a conjunction to mark off the last item on a list. There is no conjunction before packing, but there is one before distribution. "Oakhurst acknowledged that its reading would be beyond dispute if a comma preceded the word 'distribution.' " But the company argued that the comma is missing for good reason. The Maine Legislative Drafting Manual expressly instructs that "when drafting Maine law or rules, don't use a comma between the penultimate and the last item of a series."

The drivers asserted that the drafting manual is not dogmatic on this point. The manual also cautions: "Be careful if an item in the series is modified." And the manual provides several examples of how lists with modified terms should be written to avoid the ambiguity that a missing serial comma would otherwise create.

The court was more persuaded by Oakhurst's argument that no conjunction precedes "packing." "The list is strangely stingy when it comes to conjunctions, as it fails to use one to mark off the last listed activity," the court said. But it noted that sometimes drafters will omit conjunctions between enumerated lists. That said, most legislative drafters avoid this technique. "Thus, the drivers' reading of the text is hardly fully satisfying," the court said.

The drivers relied on the parallel usage convention. They noted that each of the terms in the exemption that indisputably names an exempt activity—canning, processing, preserving and so on through packing—is a gerund. By contrast, "distribution" and "shipment" are not. Thus, according to the parallel usage convention, "distribution" and "shipment" must be playing the same grammatical role—and one distinct from the role that the gerunds play, the court noted. The drivers interpret the gerunds to be referring to stand-alone, exempt activities.

In violation of the convention, Oakhurst's reading treats one of the two nongerunds ("distribution") as if it is performing a distinct grammatical function from the other ("shipment"). And Oakhurst's reading contradicts the parallel usage convention in another way: it treats a nongerund ("distribution") as if it is performing a role in the list—naming an exempt activity—that gerunds otherwise exclusively perform.

The 1st Circuit concluded that the exemption is ambiguous about whether "distribution" is a stand-alone exemption. Considering the exemption's purpose and its legislative history, the court therefore had to construe the exemption in the narrow manner the drivers favored and rule that they were nonexempt, "as doing so furthers the overtime law's remedial purposes."

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