United States: Comma, Comma, Comma, Comma, Comma Chameleon: Liability Comes and Goes with Oxford Comma

Seyfarth Synopsis:  Vampire Weekend crassly and rhetorically asked us, "Who gives a f*** about an Oxford comma?" As it turns out, lots of people: First Circuit judges, dairy farmers in Maine, truck drivers, your authors—the list goes on.

And when lists go on—as a Maine dairy company recently learned the hard way in O'Connor v. Oakhurst Dairy—that little comma between the last item and the next-to-last item goes a long way in avoiding any ambiguity. In that case, a group of dairy delivery drivers sued Oakhurst, claiming the company failed to pay them overtime under Maine's wage and hour laws.

Oakhurst argued that dairy delivery drivers are overtime-exempt under Maine's "Exemption F." Under Exemption F, Maine's overtime law does not apply to:

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.

Now, we can all agree that dairy products are "perishable foods," and the parties agreed that the drivers were not involved in canning, processing, preserving, freezing, drying, marketing, storing, or packing any food. The case came down to whether the drivers engaged in "packing for shipment or distribution."

The drivers argued that this phrase refers to a single activity of "packing," whether the packing be for shipment or for distribution. As they did not pack food, the drivers reasoned, Exemption F did not apply to them. Oakhurst argued that the phrase actually refers to two different activities: "packing for shipment" and "distribution." As the drivers clearly engaged in the distribution of food, Exemption F did apply to them.

The district court didn't need a comma between "packing for shipment" and "or distribution" to be convinced that "packing for shipment" and "distribution" are each stand-alone exempt activities under the statute; it granted summary judgment in favor of Oakhurst. On appeal, the dairy company found a much tougher customer in the First Circuit.

The First Circuit set out to determine for itself what the contested phrase means. Because Maine's high court had not interpreted Exemption F, the court looked to the plain language of the statute. Here, the court had an udder field day, parsing the language of the statute and applying rules of statutory construction. But, for want of an Oxford comma, the First Circuit found the statute ambiguous, no matter what rules or conventions it applied:

  • The Rule Against Surplusage: a court should give independent meaning to each word in a statute and treat no word as unnecessary. Oakhurst argued that "shipment" and "distribution" mean the same thing, so the Maine legislature could not have meant both to modify "packing." The First Circuit disagreed, noting that Maine includes both "distribution" and "shipment" together in other lists in its statutes and finding that the words do not necessarily mean the same thing. Conclusion? Still ambiguous.
  • The Parallel Usage Convention: "every element of a parallel series must be a functional match of the others (word, phrase, clause, sentence) and serve the same grammatical function in the sentence (g., noun, verb, adjective, adverb.)." The drivers pointed out that every activity in Exemption F is a gerund—"canning," "processing," "preserving," "packing," etc.—but that both "shipment" and "distribution" are not. If the words "shipment" and "distribution" are read as the object of the preposition "for," i.e., "packing for shipment" and "packing for distribution," the statute doesn't violate the convention—and "packing for shipment" and "distribution" do not constitute stand-alone exempt activity under the statute. But if "packing for shipment" and "distribution" are read as stand-alone activities, then we have gerunds and non-gerunds in a parallel series, which violates the convention and is an affront to grammarians everywhere. The First Circuit seemed to agree that the drivers' construction wasn't as messy grammatically but stopped short of saying that the parallel usage convention resolved the ambiguity. In other words, still ambiguous.
  • Maine's Aversion to the Serial Comma: Maine's legislative drafting manual instructs drafters of laws and rules not to use the Oxford comma. The dairy company argued that, because of this instruction, its construction must be right; we should just read the statute as if it included the prohibited comma. But, as the drivers pointed out, the manual isn't "dogmatic on that point," and it provides guidance on how "to avoid the ambiguity that a missing serial comma would otherwise create." The court agreed that the missing serial comma—if indeed there was a missing serial comma—created ambiguity, casting doubt on whether this was a case of a missing serial comma at all. So, still ambiguous.
  • The Convention of Using Conjunctions: drafters typically use a conjunction like "and" or "or" to mark off the last item in a list. Oakhurst emphasized that there is no conjunction before "packing" in Exemption F, but there is a conjunction before "distribution." While the First Circuit considered this "Oakhurst's strongest textual rejoinder," that wasn't the final word on matter. The drivers fought back with asyndeton—a technique in which drafters make a list without using conjunctions, citing zero examples of Maine drafters using this technique—and Latin—specifically, the noscitur a sociis canon, which requires giving words grouped in a list "related meaning." Like a glass of skim milk, the court found the drivers' response "hardly fully satisfying," but it was enough to keep their case alive. Yep. Still ambiguous.

With all this textual ambiguity, and "no comma in place to break the tie," the First Circuit turned to the legislative history and statutory purpose to guide its interpretation of the statute. After churning out another five or so pages of analysis, the court concluded that these too were unhelpful in resolving the ambiguity.

Finding no other way to resolve the ambiguity, the First Circuit reverted to the default rule of construction under Maine law for ambiguous wage and hour laws: liberally construe the statute to further the purpose for which it was enacted. In other words, the court accepted the drivers' narrower construction of the exemption and reversed the district court's summary-judgment ruling.

Now, maybe you're not an employer in a perishable food industry in Maine; chances are, you aren't. But courts also narrowly construe the FLSA's exemptions against employers. For that and other reasons, its always a good idea to periodically review whether the employees you've classified as exempt truly qualify for an exemption. Otherwise, like Oakhurst, you may find yourself crying over spilled milk.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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