Grammar and Overtime

This is a story about grammar (specifically, the “serial comma”) and the overtime law of the State of Maine. The U.S. First Circuit Court of Appeals recently decided whether certain fresh food delivery drivers are entitled to overtime pay.  For those of us who spend much of our time and make our livings trying to write clearly, the opinion is a delicious (yes, that was intentional) illustration of the importance of attention to grammatical detail.

The drivers deliver dairy products for Oakhurst Dairy.  Maine’s law on overtime pay provides that employees performing certain types of work are not entitled to overtime pay.  Among the types of work described are:

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 italicized words are at the heart of the dispute. Does the phrase “for shipment or distribution” modify the word “packing,” so that drivers (who do not pack the products they deliver) are not within the exemption?  Or is this a list of activities in which the last two items are “packing for shipment” and “distribution”?  If that is the correct interpretation, the drivers (who unquestionably are engaged in distribution of the products) are not entitled to overtime pay.

The drafters of the statute could have avoided the ambiguity in one of two ways. They could have inserted the word “or” before the word “packing,” which would have made it clear that “packing,” whether for shipment or for distribution, is the last item in the list, consistent with the drivers’ position; or they could have inserted a comma (the “serial comma,” or “Oxford comma”) after the word “shipment,” making it clear that the last two items in the list are “packing for shipment” and “distribution.”  But they did neither, leaving the meaning of the statute up for argument before the courts.

The trial court found in favor of Oakhurst, the employer. But the Court of Appeals, after considering both the grammatical issues and the legislative history of the statute, concluded that it couldn’t resolve the ambiguity.  And since the statute is ambiguous, it must (said the appellate court) be construed to support the “broad remedial purpose of the overtime law, which is to provide overtime pay protection to employees.”  Victory for the drivers; and lest you think this is a minor matter, the New York Times has reported that as much as $10 million may be at stake in the case.

The New York Times article, which alerted me to the case, is here; and the opinion itself (which is entertaining reading for employment lawyers and grammar nerds) is here.

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