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Missing Oxford Comma Costs Dairy Business Millions

In O’Connor v. Oakhurst Dairy, the First Circuit overruled a lower court and held that a group of drivers for a dairy company were collectively owed millions of dollars in overtime pay, all over a missing Oxford comma. ((No. 16-1901, 2017 WL 957195 (1st Cir. Mar. 13, 2017).)) In a list of three or more items—for example, bacon, egg, and cheese—the Oxford comma is the comma after egg. ((Daniel Victor, Lack of Oxford Comma Could Cost Maine Company Millions in Overtime Dispute, New York Times (March 16, 2017), People (often passionately) disagree on whether the Oxford comma is necessary. Most news organizations, in the interest of saving space, leave out the Oxford comma unless it is necessary to avoid confusion. ((Id.)) Book and academic publishers usually take the opposite stance—both the Chicago Manual of Style and the Oxford University Press style use it. ((Id.)) The American public is split on the issue, with 57% in favor of using the comma in all cases, and the rest opposed. ((Id.))

The missing Oxford comma at issue in O’Connor was in a Maine state law that carves out the following activities as exceptions to overtime laws: “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).)) The absent comma after the word shipment makes it unclear whether the law intends to exempt both packing for shipment and distribution—two separate jobs—from overtime laws or only the packing for shipment and distribution. ((Colin Dwyer, The Oxford Comma: Great For Listing, Pontificating, And Winning Court Cases, NPR (March 16, 2017), It should be noted that the Maine Legislative Drafting Guide actually instructs legislators to not use the Oxford comma, though it does advise caution if omitting it would cause confusion. ((Victor, supra note 2.))

Oakhurst Dairy argued, of course, that “packing for shipment” and “distribution” were two separate activities, both covered by the statute, and therefore they had correctly not been paying the drivers overtime for their work distributing perishable foods. ((Mary Norris, A Few Words About That Ten-Million-Dollar Serial Comma, The New Yorker (March 17, 2017), Oakhurst relied primarily on the rule against surplusage, which instructs that, where possible, each word in a statute must be given independent meaning. ((O’Connor v. Oakhurst Dairy, No. 16-1901, 2017 WL 957195 at *8 (1st Cir. Mar. 13, 2017).)) They argued that shipment and distribution are synonyms, so distribution had to be a separate category or there was no reason for its inclusion in the sentence at all. ((Id.)) Oakhurst also relied on the convention of setting off the last item in a list with a conjunction, which would make “distribution” the last item in the list, not “packing for shipment and distribution.” ((Id. at *9.))

The drivers, who worked distributing the perishable foods but did not help with the packing of said foods, argued that they were owed overtime pay because the act of distribution was not itself covered by the statute. ((Norris, supra note 9.)) The truck drivers also pointed out that, in addition to the missing Oxford comma, the sentence also flouts the “parallel usage convention” if read the way that Oakhurst Dairy urged the court. ((Id.)) The parallel usage convention is that every element in a parallel series must be a functional match of the others and serve the same grammatical purpose. ((Rachel Hoffer & John Phillips, Comma, Comma, Comma, Comma, Comma Chameleon: Liability Comes and Goes with Oxford Comma, JD Supra Business Advisor (March 22, 2017), In this case, that would mean that if distribution were intended to be covered as a separate category under the law, it should have been the gerund verb form “distributing”—in order to match up with canning, processing, preserving, etc.—rather than the noun “distribution,” which syntactically matches it with “shipment” instead. ((Id.))

The judge concluded that the poorly written law was ambiguous even in light the legislative history and overall purpose of the law. ((O’Connor v. Oakhurst Dairy, No. 16-1901, 2017 WL 957195 at *7 (1st Cir. Mar. 13, 2017).)) Under Maine law, the default rule for ambiguities in the state’s wage and hour laws is that they “should be liberally construed to further the beneficent purposes for which they are enacted.” ((Id. at *24.)) Because the law was enacted to protect workers, the statute had to be read in favor the defendant employees. ((Id.)). Oakhurst Dairy now owes $13 million in back overtime pay to the defendant drivers. ((Hoffer & Phillips, supra note ­­15.)).

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