Employer’s wage and hour defense foiled by a comma. Yep, a damn comma!


This is all a gigantic excuse to play Comma Karma Chameleon and Karma Police.

Unless you operate a business in Maine, enjoy Culture Club, or just like Oxford comma jurisprudence, there’s really nothing to see here.

Still, a special thank you to @IAmOxfordComma on Twitter, which reduced the First Circuit’s decision in O’Connor v. Oakhurst Dairy down to its very essence.

And, for those of you who are still with me, here are a few extra words about the case:

The Maine wage and hour laws exempt from the overtime requirements those who are involved in: “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 parties’ dispute concerned the meaning of the words “packing for shipment or distribution.

The plaintiff drivers argued that, although they do handle perishable foods, they do not engage in “packing” them. Therefore, because they didn’t engage in both activities, they were overtime-eligible. Conversely, the employer argued that the two activities, “packing for shipment” and “distribution,” were mutually exclusive. In other words, if the plaintiff were engaged in distribution, there were exempt. If they engaged in packing for shipment, there were exempt.

While the lower court sided with the employer, the First Circuit determined that the statute was ambiguous and, therefore, should be construed “in the narrow manner that the drivers favor, as doing so furthers the overtime law’s remedial purposes.” Plaintiffs win.

Employer takeaways:

  1. When drafting workplace policies and procedures, use examples to explain them. That may help to avoid ambiguities.
  2. Wait, there’s a song called “Commas“?
  3. A 2014 FiveThirtyEight.com poll found that 57% of grammarians preferred the Oxford comma over opponents of the extra comma.
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