“For want of a comma, we have this case”: thus began a judgment of the United States Court of Appeals For the First Circuit rendered earlier this week in O’Connor v. Oakhurst Dairy. The punctuation mark in question was more specifically the “Oxford comma”, which has been referred to as “an optional comma before the word ‘and’ at the end of a list”.
This case involved a law enacted in Maine relating to payment of overtime wages to employees, who in this case were delivery drivers. The specific dispute pertained the applicability of an exemption from such law that would deny the payment overtime to the delivery drivers. Specifically, Exemption F of the law “states that the protection of the overtime law 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.”
The dispute in question was narrowed to the expression “packing for shipment or distribution”. The contention of the delivery drivers was “that, in combination, these words refer to the single activity of “packing,” whether the “packing” is for “shipment” or for “distribution”. Therefore, they argue the exemption ought not to apply to them as they were not involved in packing. On the other hand, Oakhurst responded “that the disputed words actually refer to two distinct exempt activities, with the first being “packing for shipment” and the second being “distribution””, due to which the exemption should apply to the delivery drivers, thereby denying them any entitlement to overtime payments.
Consistent with general principles of statutory interpretation, the Court began by examining the literal meaning of the expression used, but it found that Exemption F is ambiguous. In other terms, the words used in the statute did not render any help to the Court in determining the dispute, due to which it noted that the “text has, to be candid, not gotten use very far”. It found that “there being no comma in place to break the tie – the text turns out to be no clearer on close inspection than it first appeared.”
Therefore, the Court disregarded the literal interpretation and turned to the purpose of the exemption and the legislative history. Applying a purposive interpretation, the Court found that in case of any ambiguity, the wage laws must be “liberally construed to further the beneficent purposes for which they are enacted”. It therefore held in favour of the delivery drivers by deciding that Exemption F was not applicable to them, thereby entitling them to overtime payments. In doing so, it reversed a lower court decision that had held in favour of the employer.
The fact that the lack of an Oxford comma in Exemption F saved the day for the delivery drivers is evident from the following observations of the Court:
Given that the delivery drivers contend that they engage in neither packing for shipment nor packing for distribution, the District Court erred in granting Oakhurst summary judgment as to the meaning of Exemption F. If the drivers engage only in distribution and not in any of the stand- alone 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.
In all, legal rights pertaining to several million dollars of overtime payments hinged upon the lack of a comma. More so, there is no uniformity in the necessity or use of the Oxford comma, as this analysis suggests. This poses several challenges for legislative drafters whose role it is to draft laws in clear and unambiguous ways. Of equal importance is the use of the Oxford comma (and other punctuation marks) in corporate and commercial contracts. This episode suggests that the lack of sufficient attention in the use of the comma could make a difference amounting to significant sums of money for the clients who engage lawyers to draft sophisticated contracts.