In an interesting case involving exceptions to the overtime law of Maine, a missing comma and a simple conjunction forced a company to settle for $5 million to resolve overtime allegations. The question was simple – In Maine, are drivers distributing milk exempt from overtime? Maine’s overtime law had an exception for those workers involved in food “canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution.”
The issue revolved around whether “packing for shipment or distribution” meant two activities or just one. If two activities, it would be for packing for shipment and for distribution (i.e. driving the trucks distributing the milk). If one activity, it would simply be as stated: packing for shipment and distribution. Therefore, distributing the milk would not be exempt.
If the list had included a serial, or Oxford, comma, it would be an easy decision. The law would have exempted people involved in “canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment, or distribution.” On the other hand, the trial court found that Maine’s legislature’s drafting manual advises against using serial commas. These commas are not typically used in the state’s laws. Specifically, the Maine Legislative Drafting Manual states that drafters should not write “trailers, semitrailers, and pole trailers,” but write “trailers, semitrailers and pole trailers.”
Therefore, the trial court found that intent of the listing under the legislative standards would have been for two separate activities: packing for shipment and for distribution. They dismissed the case.
On appeal, the truck drivers argued that the listed activities — canning, freezing, drying, packing — are gerunds, or verbs that function as nouns. But “distribution,” like “shipment,” is a non-gerund noun. The truck drivers then argued that it was clear that “distribution” only modified “packing.” Further, the truck drivers argued that it would be poor grammar to add the comma, because it would break the parallel construction established in the sentence. There would be a mixing of grammatical styles.
The appellate court appeared to be thoroughly unconvinced by both parties. There was also the issue of missing conjunctions, where the only conjunction used in the list was “or” between the words “shipment” and “distribution.” The court was reluctant to conclude from the text alone that the legislature clearly chose to deploy the nonstandard grammatical device of asyndeton, a technique that legislative drafters will omit conjunctions altogether between the enumerated items in a list.
The court then reviewed what the legislature meant in crafting this law. First, the court found that it would be understandable to apply the exemption to packing for distribution because the perishable food is just that, perishable and time was of the essence. However, the court found that no matter what delivery drivers are paid for the journey, the trip cannot be made to be shorter than it is.
The court then found that drivers were not shown to have worked in a position that either packed for shipment or distribution. Their job solely was distribution. Therefore, because of a missing comma and the one conjunction “or” that required either shipment or distribution to be related to packing, the drivers received a grammatical win.
The case eventually settled in February 2018 for $5 million.
Source: O’Connor et. al. v. Oakhurst Dairy and Dairy Farmers of America, Inc., No. 16-1901 (U.S. 1st Circuit Court of Appeals, March 13, 2017), NY Times March 18, 2017, Law360 2/9/18