Costly commas

Arguments over grammar and punctuation aren’t limited to English faculty parties where the sherry has been flowing too freely. They also have real consequences out in the real world. In Portland, Maine, a missing comma may force the Oakhurst Dairy to pay a bunch of money to its truck drivers.

Maine law says companies don’t have to pay workers extra overtime for certain kinds of work. The exemptions include: 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.

Notice that there’s no comma between “packing for shipment” and “distribution.” The drivers said that means the exemption is for a single activity, which is packing. It doesn’t matter whether the packing is for shipment or for distribution. Drivers don’t pack anything, so they say they’re not included in the exemption, and they should get extra money. The company argued that the words refer to two distinct activities. One activity is packing, and the other is distribution. Drivers distribute, so the company says they shouldn’t get extra pay for overtime.

The drivers lost their original lawsuit, so they appealed. The appellate court sided with the drivers and said they can have another shot.

Circuit Judge David Barron took a deep dive explaining the reversal. He takes us on a tour of the Chicago Manual of Style (which says you need the comma), the Maine Legislative Drafting Manual (which says no, you don’t) and “Reading Law: The Interpretation of Legal Texts.” That book is notable for two reasons. One of it authors was the late Supreme Court Justice Antonin Scalia, and it contains an explanation of the word “asyndeton.”

After wrangling with punctuation and grammar for 18 pages, Judge Barron throws up his hands and laments, “the text turns out to be no clearer on close inspection than it first appeared.”

So he moves on to the whole purpose of the exemption, which is to get perishable foods to the places they need to go before they perish. But, “It is thus not at all clear that a legal requirement for employers to pay overtime would affect whether drivers would get the goods to their destination before they spoiled.”

So it’s back to punctuation and grammar, including an analysis of prepositions and gerunds. Don’t remember what a gerund is? Don’t worry. Most people don’t.

Finally, Judge Barron falls back on the default rule regarding ambiguous provisions in Maine’s wage-and-hour laws: They “should be liberally construed to further the beneficent purposes for which they are enacted.” The drivers win their appeal.

If you’d like to read the entire 29-page decision (and who wouldn’t), you can find it here.

The dairy could have avoided this problem. While the company had no control over how the exemptions were written, it did have the discretion to pay the drivers extra for overtime. Which would have been the right thing to do.

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