(February 11, 2018) The lack of a serial comma in a statute has cost a Maine dairy $5 million in a settlement with truck drivers who originally were denied overtime pay.
The case gained the attention of English majors because the U.S. Court of Appeals for the First Circuit devoted 17 pages of its 29-page opinion to discussing the proper use of a serial comma in the Maine overtime law. 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.” Because there was no comma in the phrase “packing for shipment or distribution of,” the appellate court said the phrase was ambiguous but that, when the entire statute was reviewed, there was no exemption from paying overtime. See our earlier reporting of the case and the opinion here. Ultimately, the appellate court remanded the case because the factual record was not clear as to what the dairy drivers did and whether they met the overtime requirements.
Under the settlement, about 127 drivers will be eligible to a portion of the settlement. The attorneys will be repaid their costs plus one-third of the settlement amount.
As to the statute itself, the Maine legislature revised it. The legislature eliminated all of the commas in the relevant section and replaced them with semicolons. As to the phrase “packing for shipment or distribution,” the phrase now reads “packing for shipment; or distribution of . . . .”
With both a former journalist and a former English teacher, Balough Law Offices understands the importance of punctuation, phrasing, and word choice when drafting contracts, licenses, and other documents to meet our clients’ goals.
O’Connor et al v. Oakhurst Dairy et al, D.C. Maine, No. 14-cv-00192, settlement filed February 8, 2018.