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A Comma or Not a Comma Can Turn a Case

(March 20, 2017) The comma may be a small punctuation mark but its presence, or absence, can have a huge impact, as shown in an overtime dispute involving delivery drivers and a dairy.

The U.S. Court of Appeals for the First Circuit devoted 17 pages of a 29-page opinion to discussing the lack of a comma and its effect on the outcome of the case before finally deciding that the discussion “has, to be candid, not gotten us very far.”

The case concerns whether a Maine dairy has to pay overtime to delivery drivers or whether an exemption applies. The requirement for overtime pay does not apply if the work is “[t]he canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of (1) Agriculture produce; (2) Meat and fish products; and (3) Perishable foods.”

Both sides focused on the lack of a comma in the phrase “packing for shipment or distribution.” The drivers argued that the words refer to the single activity of “packing”: whether the “packing” is for “shipment” or for “distribution.” The dairy argued that the phrase refers to two distinct exempt activities: the first being “packing for shipment” and the second “distribution.” The trial court granted summary judgment for the dairy and the drivers appealed.

The appellate court observed that “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 perform. 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 this dispute over whether the drivers fall within the exemption from the overtime law or not.”

The appellate court noted that “the Maine Legislative Drafting Manual expressly instructs that: ‘when drafting Maine laws or rules, don’t use a comma between the penultimate and the last item of a series.’” This convention, the appellate court observed, is contrary to the rules of most other states. “[W]e would be remiss not to note the clarifying virtues of serial commas that other jurisdictions recognize,” the judges wrote. “And so—there being no comma in place to break the tie—the text turns out to be no clearer on close inspection that it first appeared.”

To resolve the question, the appellate court decided that, when the statute is reviewed as a whole, giving the intent that overtime should apply, then the drivers’ interpretation should apply. However, the appellate court also found the record ambiguous as to what the drivers do and remanded the case. “If the drivers engage only in distribution and not in any of the stand-alone activities that Exemption F covers—a contention about which the Magistrate Judge recognized possible ambiguity—the drivers fell outside of Exemption F’s scope and thus within the protection of the Maine overtime law.”

Balough Law Offices understands the importance of the comma when drafting contracts, licenses, and other documents for clients.

Kevin O’Connor, et al. v. Oakhurst Dairy, et al., Fifth Cir. No. 16-1901, issued March 13, 2017.