Oakhurst Dairy has reportedly agreed to pay $5 million dollars to delivery drivers who brought an overtime claim under Maine law. This case has delighted grammar geeks because it turned on the absence of a serial, or Oxford, comma. For those who don't remember their high school grammar, a serial comma is the last comma preceding the conjunction in a series, such as "red, white, and blue." Although not usually necessary, omission of a serial comma can create an ambiguity in certain cases, and that's what happened here.
Under the provision at issue, overtime protections do 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."
The issue presented was whether "packing for shipment or distribution" refers to two categories -- one, packing for shipment, and two, distribution" -- or one category -- packing for shipment or distribution. If there had been a serial comma before "or distribution," then delivery drivers clearly would have been exempted, but the lack of a comma created the ambiguity whether the Maine legislature had intended to merely exempt two kinds of packing, either for shipment or distribution.
As the First Circuit saw it, there were arguments on both sides. On the drivers' side, for example, the term "distribution," unlike the terms used for activities clearly exempted, such as "canning" and "processing," is not a gerund, suggesting that it serves a similar purpose to "shipment." On the defendant's side, the court noted the omission of a conjunction before "distribution." Ultimately finding the statute ambiguous, the court construed the exemption narrowly in the drivers' favor, in furtherance of the remedial purpose of the statute.
On the lighter side, check out this video of the Vampire Weekend song "Oxford Comma."
This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.