The Power of an Oxford Comma

April 5, 2017

The Oxford Comma debate has been plaguing the English speaking world since the inception of the English language. While people may debate its proper use or the lack thereof, the Oxford Comma does have real-world legal complications as seen in a recent labor dispute from Maine where the absence of an Oxford Comma played a deciding factor for the First Circuit Court of Appeals.

The case involved a dispute between a dairy company and its delivery drivers regarding an overtime pay exemption. Maine requires employers to pay employees overtime—time and a half of their hourly rate—for any hours worked in excess of 40 hours in a week. However, certain employment activities are exempted from the overtime requirement. The overtime exemption provision stated that overtime would not apply to “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.

As the nature of their work is primarily distributing perishable foods, whether delivery drivers receive overtime pay hinged on whether the statute applied to “packing for shipment or distribution” as one activity or exempted “distribution” as its own stand-alone activity. The District Court determined that the exemption statute was unambiguous and distribution was a “stand-alone exempt activity.” The delivery drivers appealed to the First Circuit Court of Appeals.

The First Circuit Court of Appeals had to determine whether the absence of the last comma meant that delivery was a stand-alone exempt activity or not. The Court noted:

[I]f that exemption used a serial comma to mark off the last of the activities that it lists, then the exemption would clearly encompass an activity that the drivers perform. And, in that event, the drivers would plainly fall within the exemption and thus outside the overtime law’s protection. But, as it happens, there is no serial comma to be found in the exemption’s list of activities, thus leading to this dispute over whether the drivers fall within the exemption from the overtime law or not.

The Court determined the exemption provision was ambiguous. Under Maine’s default rule of construction for ambiguous statutes, the Court reasoned it must liberally construe the exemption provision for the benefit it was conferred and interpret the ambiguity in the law in favor of the drivers. The Court concluded, “[i]f the drivers engage only distribution and not in any of the standalone activities . . . the drivers fall outside [the scope of the exemption] and thus within the protection of the Maine overtime law.

The Oxford Comma originates from the use of the comma by the Oxford University Press. It was their practice to “retain or impose [the last comma] consistently.” This practice allowed for resolving any ambiguity. So for future reference, it is always safer, if not better, to use that Oxford Comma to avoid the very need of any confusion; “[f]or want of a comma, we [had] this case.

The First Court of Appeal’s opinion is available on Westlaw: O’Connor, Et. Al. v. Oakhurst Dairy, Et. Al. 

Photo Source: Oxford Dictionaries


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