The Great Oxford Comma Litigation Is Settled and a Statute is Amended

In 2016, a group of delivery drivers brought suit against Oakhurst Dairy for the company’s failure to provide them with overtime pay. The case, originating in Maine, was based on Maine’s overtime pay statute, which provides that “[a]n employer may not require an employee to work more than 40 hours in any one week unless 1 1/2 times the regular hourly rate is paid for all hours actually worked in excess of 40 hours in that week.” 26 M.R.S.A. § 664(3) However, the Maine law also provides certain exemptions to the overtime provisions.

Oakhurst Dairy’s response to the suit was to cite Exemption F, which provides an overtime exemption for:

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. 26 M.R.S.A. § 664(3)(F)

 The litigation came down to the absence of a comma between the word “shipment” and “or” and what that absence meant. The delivery drivers argued that, in combination, these words refer to the single activity of “packing,” whether the “packing” is for “shipment” or for “distribution.” The drivers also argued that although they do handle perishable foods, they do not engage in “packing” them. As a result, the drivers argued that they are entitled to overtime.

Oakhurst Dairy argued that the disputed words actually refer to two distinct exempt activities, with the first being “packing for shipment” and the second being “distribution.” Because the delivery drivers do engage in the “distribution” of dairy products, which are “perishable foods,” Oakhurst Dairy contended that the drivers are under the Exemption F and outside the overtime law's protection.

 At the trial, the drivers faced the treacherous legal waters of the so-called Oxford comma. Grammatically speaking, the Oxford view requires a comma to follow every item in a list, including the last one. However, the Maine Legislature Drafting Manual warns against using the Oxford comma. But, the manual also cautions that a list or series demands care because of possible confusion. At the trial court level, the drivers lost on their interpretation of the statute and the Oxford comma. O’Connor v. Oakhurst Dairy, 2016 WL 1181664 (D. Maine 2016). The court held that the evidence showed that even if the drivers’ interpretation were correct, the evidence also showed that the drivers were involved in packing.

 The appellate court reversed the lower court’s decision because the law is ambiguous, even with all the comma rules, interpretations, and guidance. O’Connor v. Oakhurst Dairy, 851 F.3d 69 (1st Cir. 2017).

As a result, the drivers were set to recover $10 million in back wages. As the lawyer for the drivers noted about the missing comma, “That comma would have sunk our ship.” Daniel Victor, “A bit of grammatical pedantry with a $10 million cost,” New York Times International, March 18-19, 2017, p. 8. Oakhurst was planning an appeal, but reached a settlement with the drivers to pay them $5 million. Daniel Victor, “Suit Over Oxford Comma Is Settled, for $5 Million and a Slew of Semicolons,” New York Times, February 10, 2018, p. A11.

Whilst the parties were litigation, the Maine legislature got to work and changed the statute, which now reads:

The canning; processing; preserving; freezing; drying; marketing; storing; packing for shipment; or distributing of:

(1) Agricultural produce;

(2) Meat and fish products; and

(3) Perishable foods. 26 M.R.S.A. § 664(3)(F)

 Note the absence of commas and a passel of semicolons. Legislation must heed the rules of punctuation or risk litigation.

DISCUSSION STARTERS

 Explain the two versions of the statute, with and without the comment.

What did the Maine legislature do?

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