The lack of an Oxford comma in a Maine statute could end up costing a Maine dairy company millions of dollars:
A class-action lawsuit about overtime pay for truck drivers hinged entirely on a debate that has bitterly divided friends, families and foes: The dreaded — or totally necessary — Oxford comma, perhaps the most polarizing of punctuation marks.
What ensued in the United States Court of Appeals for the First Circuit, and in a 29-page court decision handed down on Monday, was an exercise in high-stakes grammar pedantry that could cost a dairy company in Portland, Me., an estimated $10 million.
In 2014, three truck drivers sued Oakhurst Dairy, 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.
A quick punctuation lesson before we proceed: In a list of three or more items — like “beans, potatoes and rice” — some people would put a comma after potatoes, and some would leave it out. A lot of people feel very, very strongly about it.
The debate over commas is often a pretty inconsequential one, but it was anything but for the truck drivers. Note the lack of Oxford comma — also known as the serial comma — in the following state law, which says overtime rules do not apply to:
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.
Does the law intend to exempt the distribution of the three categories that follow, or does it mean to exempt packing for the shipping or distribution of them?
Delivery drivers distribute perishable foods, but they don’t pack the boxes 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.
If there were a comma after “shipment,” it might have been clear that the law exempted the distribution of perishable foods. But the appeals court on Monday sided with the drivers, saying the absence of a comma produced enough uncertainty to rule in their favor. It reversed a lower court decision.
In other words: Oxford comma defenders won this round.
“That comma would have sunk our ship,” David G. Webbert, a lawyer who represented the drivers, said in an interview on Wednesday.
The language in the law followed guidelines in the Maine Legislative Drafting Manual, which specifically instructs lawmakers to not use the Oxford comma. Don’t write “trailers, semitrailers, and pole trailers,” it says — 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,” it cautions.
In this case, the drafters weren’t cautious enough, thus creating an ambiguity that was sufficient to reverse a trial court ruling that granted summary judgment to the dairy based on the trial court’s reading of the statute. The case will now return to District Court for trial, and it will be up to the trial judge to attempt to resolve the ambiguity in the law, but it doesn’t look good for the dairy based on the First Circuit’s ruling on this appeal.
You can read the opinion here.
