The $10 million Oxford comma

I'll admit that, until recently, I had not considered writing an article on the impact of a single punctuation mark - an Oxford comma in this instance. As a professional, my writing has evolved and improved over the years, due in large part to my wife's patient tutoring and proofreading. A lifelong fan of the Oxford comma, also known as a serial comma, she ingrained its importance in me very early in the process. So, with a strong desire to both become the best writer I could be and sustain a happy marriage, I gladly followed her instructions.

For those who, until now, have been happily unaware of this stylistic option, I'll provide a quick punctuation lesson. In a list of three or more items, the Oxford comma is the last comma in the list. For example: The frame contains pictures of my two best friends, Derek Jeter, and Mariano Rivera. The Oxford comma is after Jeter. With the comma, it's clear that the pictures in the frame are of my two best friends, in addition to Derek Jeter and Mariano Rivera. Written without the comma - the frame contains pictures of my best friends, Derek Jeter and Mariano Rivera - could be interpreted to mean Derek Jeter and Mariano Rivera are my best friends.

What does this have to do with employment law and human resources? Based on the recently decided case, O'Connor v. Oakhurst Dairy, in the U.S. Court of Appeals for the First Circuit, a lot. In fact, about $10 million. This wage and hour case looks to the state of Maine's overtime regulations to determine if Oakhurst delivery drivers, which the company refers to as route salesmen, are exempt from overtime requirements.

Maine requires overtime pay at one and one-half of the employee's hourly wage for work in excess of 40 hours a week. However, the regulations exempt many employees involved in food production. Specifically, the state-specific rule (26 M.R.S.A. § 664(3)(F)), does 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."

According to the delivery drivers' interpretation, the absence of a serial comma means that the rule exempts "packing for shipment or distribution," and not "distribution." Oakhurst Dairy has taken the opposite position, interpreting the rule as exempting the "distribution of" the items on the list. The company's argument was enough for a district judge in Maine to find the state legislature intended "packing for shipment" and "distribution" to be two separate ideas. The judge also turned to the legislature's drafting manual, which advises against using serial commas except where it is necessary to avoid ambiguity, and is typically followed in the state's laws.

So, as Judge David Barron states at the beginning of his 29-page decision, "[f]or want of a comma, we have this case." The First Circuit conducted an extensive analysis of the statutory language using "certain linguistic conventions," or "canons," which only my wife and my sister (who was also my 10th grade English teacher) encouraged me to include in this piece. Ultimately unable to ascertain the rule's clear meaning from its text or legislative history, Judge Barron and his colleagues held the lower court must "adopt the delivery drivers' reading of the ambiguous phrase ..., as that reading furthers the broad remedial purpose of the overtime law, which is to provide overtime pay protection to employees." Further, "[i]f the drivers engage only in distribution and not in any of the standalone activities that Exemption F covers - a contention about which the Magistrate Judge recognized possible ambiguity - the drivers fall outside of Exemption F's scope and thus within the protection of the Maine overtime law."

As someone who often obsesses over the words and phrases I read and write to ensure the true and intended meaning is clear, I admit initially feeling vindicated by the First Circuit's decision this case. Next, I looked for a few valuable points I could share.

First, look beyond the words on the page and consider the broader context. By their very nature laws, and hopefully to a lesser extent regulations, are ambiguous. They simply cannot include and address every possible scenario. For example, the Fair Labor Standards Act ("FLSA") was written in 1938, with the intention of providing minimum wage and overtime protections for employees. Although the law and regulations have been amended several times over the ensuing decades, the primary intent has not changed. While there is nothing in the FLSA about whether spending 10 minutes checking and responding to emails away from work is compensable work time, most experts would agree that the employee must be paid for that time.

Secondly, be consistent in policy and practice. In the Oakhurst case, the company argued that the exemption covered both employees involved in "packing [perishable foods] for shipment" and employees involved in the "distribution" of those products. They reasoned that "shipment" and "distribution" are synonyms, and unless "packing for shipment" and "distribution" were interpreted as two separate exempt activities, the statute would be redundant. Unfortunately for the employer, its "own internal organization chart seems to treat [shipment and distribution] as if they are separate activities," severely weakening the company's argument.

Finally, words (and punctuation) matter. Consider how the language in the company's employee handbook could be interpreted by a plaintiff's attorney, a judge, and a jury. As we've seen in the Oakhurst case, even something as seemingly insignificant as a missing comma can be the difference between successfully defending your position and a multi-million-dollar payout.

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Frank A. Cania, M.S.Emp.L., SPHR, SHRM-SCP, is president of driven HR, A USA Payroll Company. Located in Pittsford, NY, driven HR provides human resource consulting services including HR audits, outsourced HR management, employee handbooks, and a variety of other services. Cania concentrates on wage-and-hour, FMLA, ADA, Title VII, and Form I-9 compliance, as well as workplace investigations.

Published: Fri, May 12, 2017

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