Missing Comma Costs Maine Dairy Lots of “Moo-la”

by Stefanie M. Renaud

Last week the First Circuit Court of Appeals handed down a 29-page decision best described as a grammar nerd’s dream, and this grammar lesson didn’t come cheap: it may end up costing Oakhurst Dairy of Portland, ME nearly $10 million.  In 2014, Oakhurst’s delivery drivers filed a class action suit, alleging that they were owed nearly four years of overtime wages.

At the center of the case?  A single exemption from the Maine Overtime Act – Section F – which exempts employees engaged in: “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.”

Readers who, like the author, are fans of the Oxford, or serial, comma, may have noticed that a potentially crucial comma is missing between “shipment” and “or.”  Without the clarifying Oxford comma, the law is ambiguous, leaving itself open to two interpretations: (1) only employees engaged in “packing for shipment or distribution” are excluded, or (2) employees engaged in “packing for shipment,” and employees engaged in “distribution” are both excluded.  Obviously, Oakhurst argued that the court should follow latter interpretation, while the drivers argued for the former.

After reviewing the text of the law, the legislative history, and the law’s purpose, the court was unable to resolve the ambiguity for either party.  The court then turned to the Overtime Act’s “broad remedial purpose” which directs that the Act should be construed to further its beneficial purpose.  Concluding that this purpose was better served by a narrower reading of the statute, the court held that the employees had won the day: delivery drivers were not exempt from the law’s overtime provisions.  The case was returned to the lower court for further deliberation, and liability has not yet been determined.

Although this case involves the wording of a law, over which employers have no control, employers can take a lesson from this example to understand the importance of ensuring that all employment-related documents are carefully drafted and reviewed by counsel. Although attorney suggestions, particularly with respect to grammar choices, may seem overly picky, such changes are frequently suggested to eliminate ambiguities and ensure that employers’ documents are interpreted the way the employer intended. By drafting documents as clearly as possible, employers can potentially avoid a “comma-tastrophe” of their own making.

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