$5M in Overtime for Want of a Comma

By Michael King posted 18 days ago

  

QUESTION:    C'MON! IT'S ONLY A COMMA!!!???

 

ANSWER:      A MISSING COMMA COST ONE COMPANY FIVE MILLION DOLLARS!

 

Oakhurst Dairy had to pay its delivery drivers five million dollars to settle a wage and hour dispute about overtime pay all because of a missing comma! O'Connor v. Oakhurst Dairy, 851 F.3d 69 (1st Cir. 2017).

What does punctuation have to do with an employment dispute?

"For want of a comma, we have this case." That is how the court started its opinion concerning a dispute between a Maine dairy company and the dairy delivery drivers. The case involved the scope of an exemption from Maine's overtime law.

The court continued:

Specifically, if that exemption used a serial comma to mark off the last of the activities that it lists, then the exemption would clearly encompass an activity that the drivers performed. And, in that event, the drivers would plainly fall within the exemption and thus outside the overtime law's protection. But, as it happens, there is no serial comma to be found in the exemption's list of activities, thus leading to the dispute over whether the drivers fall within the exemption from the overtime law or not.

Maine law generally requires employees to be paid time and a half for hours worked in excess of 40 hours per week. But some workers are excluded from the definition of "employees" and are exempt from overtime provisions. Specifically, the Maine overtime law does not apply to: "the canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of: (1) Agricultural produce; . . .   (3) Perishable foods." Can you spot where the Oxford comma is missing?   The dispute was about the meaning of "packing for shipment or distribution."

Dairy delivery drivers in Maine really know the English language!

The dairy said that the disputed words of "packing for shipment or distribution" meant two separate exempt activities. The first exempt activity is "packing for shipment" and the second exempt activity is "distribution." The dairy said that because the delivery drivers distribute "perishable foods" they are exempt from the overtime laws.

The linguistically adept drivers said that without a comma the phrase "packing for shipment or distribution" only referred to the single activity of "packing" no matter whether the "packing" would be for "shipment" or for "distribution." The drivers said that they do not engage in "packing" perishable foods and should be paid overtime. Everyone agreed that there was a problem "due to the fact that no comma precedes the words 'or distribution.'"

The drivers and the dairy argued over "linguistic conventions" or "canons" to make sense of the words within their context. For example, the parties argued about the "rule against surplusage." The drivers asserted "that the inclusion of both shipment and distribution to describe "packing" results in no redundancy."

Next, the drivers noted that the statutory language of "canning, processing, preserving, freezing, drying, marketing, storing, packing" are all gerunds.   On the other hand, "distribution" and "shipment" are the only non-gerund nouns in the exemption statute. Therefore, the drivers argued for the "parallel usage convention" and "distribution" and "shipment" were playing a separate grammatical role from the role played by the gerunds.

The dairy tried to milk the convention of using a conjunction to mark off the last item on the list and cited to The Chicago Manual of Style Section 6.123(16th ed. 2010). The drivers then explained the writing technique called "asyndeton" where drafters will sometimes omit conjunctions altogether between enumerated items on a list. The drivers, however, quoted Antonin Scalia and Bryan Garner for the proposition that "most legislative drafters avoid asyndeton."

In addition to many other interesting arguments by both sides, the drivers also thought their interpretation of the statute was supported by the "noscitura a sociis canon." The noscitura a sociis convention "dictates that words grouped in a list should be given related meaning."

Needless to say, many interesting linguistic arguments were raised, especially by the erudite drivers. After much discussion, the court ruled in favor of the drivers because the statute was ambiguous and "should be liberally construed to further the beneficent purposes for which [it was] enacted." "Thus, notwithstanding the opacity of the text and legislative history," the court decided the purpose of the law was to protect workers by paying them overtime.

Lesson learned?

Punctuation matters! If you need help with the careful drafting of legal documents, please call.

August 16, 2019


Michael R. King, Gammage & Burnham, Attorneys at Law

mking@gblaw.com

602-256-4405

This article may be distributed with attribution but may not be excerpted or modified without the permission of the author.

Copyright © 2019.

 

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