Grammarians rejoice! The Oxford comma survives.
Chances are you’ve never heard of this arcane little punctuation mark, considered by many a useless piece of clutter amid the complexities of proper English usage.
Only, it isn’t. In fact, the absence of an Oxford comma, also known as a serial comma, could soon cost one Maine company a ton of money.
“For want of a comma, we have this case,” began Judge David Barron of the 1st U.S. Circuit Court of Appeals in a unanimous ruling handed down Monday.
The decision reopens the door for a class-action lawsuit against Oakhurst Dairy by its drivers, who claim in a case dating back to 2014 that they illegally were denied overtime pay.
Not so, countered Oakhurst, arguing that state law specifically exempts the drivers from eligibility for overtime compensation.
That would be the same state law that’s apparently missing a serial comma.
The law states that overtime is not required for employees engaged 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.”
We’ll get back to that in a second.
First, let’s look at how a serial comma – used before the final item in a list of three or more things, just before the conjunction “and” or “or” – can change the entire meaning of a sentence.
With a serial comma: “We invited the strippers, Trump, and Putin.”
Without a serial comma: “We invited the strippers, Trump and Putin.”
(Full disclosure: A long-cited version of the above, commonly found online, uses the names “Kennedy” and “Stalin.” I updated it because, well, it just felt more relevant.)
In the first example, the serial comma makes it clear that the invitees include Trump and Putin, along with the strippers.
In the second, however, the lack of a comma suggests that Trump and Putin are, in fact, the strippers.
Now that we’ve burned that image onto your brain, back to the lawsuit.
At issue before the Court of Appeals was the phrase “packing for shipment or distribution of” the various perishable products.
Oakhurst claimed, and a lower court agreed, that “distribution” means the company’s drivers and thus exempts Oakhurst from having to pay them overtime.
Not so fast, countered the drivers.
Without a serial comma before the word “or,” both “distribution” and “shipment” flow directly from the phrase “packing for …” Since they drive the trucks and don’t pack anything, the drivers argued, they are not included among the list of exempted jobs.
Put another way, had the statute read “storing, packing for shipment, or distribution,” the drivers would have been out of luck.
Judge Barron, bless him, spent 29 pages examining the absent comma from every conceivable angle.
He looked at the 214-page Maine Legislative Drafting Manual – yes, there is such a thing.
Right there on page 113, it specifically advises, “Although authorities on punctuation may differ, when drafting Maine law or rules, don’t use a comma between the penultimate and the last item of a series.”
Aha! Case closed … or not.
Barron also noted this overarching advice from page 114 of the drafting manual: “Be careful if an item in the series is modified.”
Meaning, without a serial comma, both “shipment” and “distribution” easily can be seen as modifiers for “packing for …” As in “packing for shipment or (packing for) distribution.”
That may be bad news for packers who work more than 40 hours a week. But because the drivers pack nothing whatsoever and are not set apart by a serial comma, Barron reasoned, they still get their overtime.
The judge also plunged bravely into gerunds, which are nouns formed from verbs by adding “ing.” (See: “canning, processing, preserving, freezing, drying, marketing, storing, packing …”)
Because neither “shipment” nor “distribution” is a gerund, noted Barron, they are notably out of sync with the other exempt jobs – further supporting the notion that lawmakers used those words only to modify the job of “packing for …”
(Of course, one could counter that the average Maine legislator doesn’t know a gerund from a gerbil. But hey, the law is the law.)
What really tipped it for the court, however, was existing case law requiring, when ambiguity is found in Maine’s wage-and-hour laws, that they “should be liberally construed to further the beneficent purposes for which they were enacted.”
Because overtime laws are intended to benefit employees, the judge essentially ruled, a tie in this case goes to the drivers.
Augusta attorney David Webbert, representing the drivers, said in an interview Thursday that Judge Barron certainly “earned his paycheck” with this lengthy, erudite decision.
“This is an example of the rule of law actually working for the average person – not the rule of law designed to protect the powerful,” Webbert said. “I think it was a really well-written decision. I was really proud of the Court of Appeals for not taking shortcuts.”
The case now will proceed either to settlement talks – ultimately, this week’s decision could benefit upward of 125 drivers – or additional court proceedings to, as Webbert put it, “add up the money.”
But when that’s all said and done, a timeless lesson will remain: Language without proper punctuation is like a highway with improperly placed road signs. One missed comma and you simply can’t get there from here.
Webbert, who once chaired his local school board and was dismayed to learn that grammar wasn’t taught as a stand-alone subject, sees this as a wake-up call not only for lawmakers, but for us all.
“It’s not just about grammar,” he said. “It’s about communicating well.”
Just ask those strippers, Trump and Putin.
Bill Nemitz can be contacted at: