While limited in its immediate applicability for most employers, a recent case considered by U.S. First Circuit Court of Appeals provides an intriguing overview of both Maine employment law and English grammatical intricacies.
Maine’s overtime law requires employers to pay employees 1 and ½ times the employee’s regular hourly rate for all hours worked in excess of 40 hours. However, it does offer exemptions for workers in certain professions, such as automobile mechanics, as well as for some employees operating in the public sector. Relevant to this case, the overtime provision does not apply to:
F. 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.
In the case of O’Connor et al v. Oakhurst Dairy et al, delivery drivers employed by the Oakhurst Dairy contended that they were covered by Maine’s overtime requirements and filed suit for unpaid overtime wages. Contrarily, the dairy contended that the drivers were legally exempt from the overtime law. While both parties agreed that the drivers were employed in the handling and delivery of “perishable foods,” the dispute came down to the ambiguity of the phrase “packing for shipment or distribution” caused by the absence of a serial (or Oxford) comma.
Serial commas, while not strictly grammatically necessary, are often used before the coordinating conjunction and final item to clarify which items in a list are grouped together. For example, if the Maine statute had used the construction “packing for shipment, or distribution,” it would be clear that “packing for shipment” and “distribution” are grouped separately and must therefore be separately considered exempt activities.
In their argument, Oakhurst claimed that this was in fact the case. The defendants cited the Maine Legislative Drafting Manual, which instructs law writers: “when drafting Maine laws or rules, don’t use a comma between the penultimate and last item in a series.” This omission of the serial comma is adhered to in other Maine statutes, such as Title 26 663(3)(G) which discusses “processing, canning and packing.” Oakhurst also argued on other grammatical grounds, noting that if “packing for shipment and distribution” is taken as one unit, the provision would violate “the convention of using a conjunction to mark off the last item on the list,” as the conjunction (“or”) is placed before “distribution” rather than before “packing.”
The dairy drivers took the opposite view: the lack of a clarifying comma after the word “shipment” indicates that the single exempted activity in the disputed phrase is “packing,” which is an exempt activity whether done in preparation for shipment or in preparation for distribution. In a further grammatical argument, the plaintiffs noted that “each of the terms in Exemption F that indisputably names an exempt activity…is a gerund” (a verb, appended with –ing, that functions as a noun within a sentence). Both “shipment” and “distribution” are not gerunds, suggesting that they both play different grammatical roles within the sentence and are therefore both intended to modify the exempt activity (“packing”). “
In addition, the dairy drivers referred to their own close reading of the Maine Legislative Drafting Manual, noting that the Manual accounts for situations in which the missing serial comma could cause ambiguity and suggests alternative examples “of how lists with modified or otherwise complex terms should be written” to avoid said ambiguity.
Judge Barron of the Court of Appeals conceded that both sides had convincing statutory and grammatical arguments in their favor. However, the decision in this case ultimately came down to an entirely different interpretive necessity: “under Maine law, ambiguities in the state’s wage and hour laws must be construed liberally in order to accomplish their remedial purpose.” As there was no tie-breaking legislative or judicial history to the provision, and as it was undeniably open to interpretation rather than clear, the judge was required to reverse the District Court’s summary judgment to Oakhurst and remand the case to a lower court.
Although this case was over an ambiguity in state law, it’s a good lesson to keep in mind when drafting employee-facing documentation such as handbooks, contracts, and agreements: the goal of writing is to communicate an important idea, and some grammatical rules are made to be broken.