“For want of a comma, we have this case.”
Those words open First Circuit Court of Appeals Judge David Barron’s opinion on a labor dispute between a dairy company and its delivery drivers. The ruling from the First Circuit Court of Appeals, in favor of the drivers, hinged on the omission of an Oxford comma, also known as the “serial” comma, the “final comma in a list of things,” as Grammarly’s blog explains.
The drivers for Oakhurst Dairy disputed which actions were eligible for overtime pay.
Maine’s “wage and hour law” states that employees who work more than 40 hours must receive overtime, 1½ times the regularly hourly rate for each additional hour worked.
However, there are exceptions, as set forth in “Exemption F,” on which the clash centered:
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.
Essentially, what we have here is a list of tasks for which the employer does not have to pay overtime. It’s obvious that canning, processing, preserving and everything up to the word “packing” is part of that list and thus exempt.
Had there been a comma between “shipment” and “or distribution” these activities would have simply been a continuation of the list, each a separate activity exempt from overtime.
In the absence of the comma, the drivers argued that the exemption did not extend to “distribution” and that they were entitled to overtime for distribution.
The company claimed “distribution” was just one of the exempt activities on the list for which overtime was not required, never mind the absence of a comma.
The Appeals Court sided with the drivers, saying the absence of a comma created ambiguity and that when there is ambiguity, the court is bound to go with the purpose of the law, which was to make sure that employers were fair in the payment of overtime.
” … We conclude that, under Maine law, we must construe the exemption in the narrow manner that the drivers favor, as doing so furthers the overtime law’s remedial purposes,” Barron wrote for a three-judge panel.
Barron found the wording doubly confusing grammatically, not just because of the missing comma but because while the other words in the series — such as “processing,” “preserving” and “freezing” — are gerunds, the word “distribution” is in a different form.
” … 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,” he wrote.
In case you’re wondering why it’s called the “Oxford comma,” the answer is that it was the style of the Oxford University Press to “retain or impose this last comma consistently,” as the Oxford Dictionaries blog (no less) explains:
The general rule is that one style or the other should be used consistently. However, the last comma can serve to resolve ambiguity, particularly when any of the items are compound terms joined by a conjunction, and it is sometimes helpful to the reader to use an isolated serial comma for clarification even when the convention has not been adopted in the rest of the text. In
cider, real ales, meat and vegetable pies, and sandwiches
the absence of a comma after pies would imply something unintended about the sandwiches.
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