It isn’t just a story that has excited “grammar nerds” across the country. The fate of a $10 million class-action lawsuit for unpaid overtime hinges on the lack of a single comma in the law.
Unpaid overtime for dairy delivery drivers in Maine
Chris O’Connor made deliveries for the Maine-based dairy company Oakhurst Dairy, working 12-16 hour days on an 8-hour salary. As he told NPR, during a delivery to a Hannaford Market, “The guy asked me, how many hours are you working this week, Chris? You know, and I said, oh, probably 60 hours this week. And he’s like, oh, look at that – overtime pay. And I was like, no, I don’t get overtime. I’m salary.” That guy replied “well, you better not let the state of Maine find out. That’s illegal.”
Under Maine statute 26 M.R.S.A. § 664(3), it is illegal for employers to not pay overtime, even for salaried employees, except in a limited number of cases, including
The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of:
- Agricultural produce
- Meat and fish products; and
- Perishable foods
O’Connor’s lawyer, Jeffrey Young, saw ambiguity in that statement that seemed to keep the excemptions from applying to delivery drivers for dairy products, and filed a lawsuit in 2014. It eventually grew into a $10 million class action lawsuit representing 75 delivery drivers.
The Oxford Comma
Consider the sentence “She took a photograph of her parents, the President and Vice President.” One can read this as meaning her parents are the President and Vice President. Insertion of a comma before the last and, known as the Oxford or Serial comma, makes clear that she instagrammed three separate people: “She took a photograph of her parents, the President, and the Vice President.”
The Chicago Manual of Style uses this as an example of why the Oxford comma is needed. Many others find it clunky; the AP Manual of Style, for example, says to omit it except when the lack of a comma leads to ambiguity.
For want of a comma, we have this case.
Look back at the exception in the Maine law, which reads “…storing, packing for shipment or distribution of.” Does that last clause mean the packing for shipment, and the distribution of goods, or just the packing of goods, which will later be destined for shipment and distribution? Therein lies the ambiguity. For a deeper discussion of even more grammatical problems with this law, see this New Yorker piece.
The first lawsuit, filed in District court, was ruled in favor of the dairy and denied the payment of overtime. The case was elevated to the First Circuit Court of Appeals, which overturned that ruling last week and sent it back for further consideration.
The ruling first notes, “The District Court concluded that, despite the absent comma, the Maine legislature unambiguously intended for the last term in the exemption’s list of activities to identify an exempt activity in its own right.” However, “because, under Maine law, ambiguities in the state’s wage and hour laws must be construed liberally in order to accomplish their remedial purpose,” the appeals court adopted the “narrower reading of the exemption.”
“For want of a comma,” the appellate ruling started, “we have this case.”
In a lawsuit, there’s common sense and comma sense
After the appeals court ruling overturned the earlier decision and remanded the lawsuit back to district court, Mr. Young told NPR “My first boss always used to say to us, common sense ain’t so common. So my summary of this case is, comma sense ain’t so common.”
You know the old adage, “mind your p’s and q’s?” It didn’t originally mean “mind your manners.”
Back in the days when print had to be manually typeset by dropping each letter one at a time into a plate. But since the imprints are backwards, it was very easy to mistake a p for a q, or a b for a d for that matter. Well, perhaps we need to update that message with “mind your Oxford commas.” They aren’t just an obscure grammar rule anymore. They can cost you, big time.