“For want of a comma, we have this case.”

That is the opening line of a recent decision by the United States Court of Appeals for the First Circuit. (Note – this is a long post that deals with some legal issues and some grammatical issues. I personally found both categories of issues fascinating. If you want the short version, always use the Oxford comma, so you don’t write something like the following apocryphal book dedication: “I would like to thank my parents, Ayn Rand and God.” Put a comma after Ayn Rand to make it clear.)

The case involved a dispute between a Maine dairy company and its delivery drivers concerning the scope of an exemption from Maine’s overtime law.

The Maine overtime law is part of the state’s wage and hour law, and there are certain exemptions to those overtime laws. The one at issue here is Exemption F. Exemption F covers employees whose work involves the handling — in one way or another — of certain, expressly enumerated food products. Specifically, Exemption F 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 Court ruled that:

Specifically, if that exemption used a serial comma to mark off the last of the activities that it lists, then the exemption would clearly encompass an activity that the drivers perform. And, in that event, the drivers would plainly fall within the exemption and thus outside the overtime law’s protection. But, as it happens, there is no serial comma to be found in the exemption’s list of activities, thus leading to this dispute over whether the drivers fall within the exemption from the overtime law or not.”

In other words, if there had been a comma before the word “distribution”, then the exemption would have clearly applied to an activity that the drivers are engaged in (distribution), and as a result the drivers would not be entitled to overtime pay.

Such a comma is known as a serial comma, or perhaps more popularly as the Oxford Comma, and refers to the optional use of a comma after the next to last item in a list

While the use of the Oxford Comma is up for debate, personally, I am a big fan of it, since it rarely adds any confusion to what you are trying to say, but  not including it could cause confusion, as evidenced by this particular case.

I read the entire 29 page ruling (it may be the first one I’ve ever read), and it was fascinating, at least if terms like serial conjunctions, gerunds, and asyndeton (which I had never heard of) get you excited.

The Dairy Company contends that shipment and distribution are synonyms, and the phrase “packing for shipment or distribution” would be redundant if one were to lump both words together as part of the “packing” activity. The Dairy Company thus interprets the law to say that distribution, like packing, is a separate activity that is exempt from overtime laws.

In addition, the Company relies on another linguistic convention in pressing its case — the convention of using a conjunction to mark off the last item on a list. (a conjunction is the use of the word “and” or “or”). The Company notes that there is no conjunction before “packing,” but that there is one after “shipment” and thus before “distribution,” indicating that “distribution” is the last term in the list, separate from the term “shipment”.

As to the missing serial comma, the Company notes that the comma is missing for good reason; the Maine Legislative Drafting Manual expressly instructs that: “when drafting Maine law or rules, don’t use a comma between the penultimate and the last item of a series.”

Hmmmm…. that last part seems to offer some good support for the company, since the guidelines state to not use a serial comma.

Well look at some of the arguments made by the drivers:

The drivers contend, first, that the inclusion of both “shipment” and “distribution” to describe “packing” results in no redundancy. Those activities, the drivers argue, are each distinct. They contend that “shipment” refers to the outsourcing of the delivery of goods to a third-party carrier for transportation, while “distribution” refers to a seller’s in-house transportation of products directly to recipients. The court points out if the terms were synonymous, like the Dairy Company contends, then why didn’t the law just use the same term twice (“packing for shipment and shipment”) to make it clear that the law was referring to two distinct activities (packing for shipment vs. shipment) that are exempt from the overtime law.

Next, the drivers point to the exemption’s grammar. The drivers note that each of the terms in Exemption F that indisputably names an exempt activity — “canning, processing, preserving,” and so forth on through “packing” — is a gerund (a word that ends in “ing”). By, contrast, “distribution” is not. And neither is “shipment.” In fact, those are the only non-gerund nouns in the exemption, other than the ones that name various foods. Thus, the drivers argue, in accord with what is known as the parallel usage convention, that “distribution” and “shipment” must be playing the same grammatical role — and one distinct from the role that the gerunds play. In accord with that, the drivers read “shipment” and “distribution” each to be objects of the preposition “for” that describes the exempt activity of “packing.” Since the drivers are not engaged in packing, they claim that this part of the exemption does not apply to them.

As to the drafting manual that advises drafters not to use serial commas to set off the final item in a list — despite the clarity that the inclusion of serial commas would often seem to bring. The drivers point out that the drafting manual is not dogmatic on that point. The manual also contains a proviso — “Be careful if an item in the series is modified”.

And finally, with regards to the use of the conjunction “or”, which also provides a strong argument for the Dairy, this is where the word “asyndeton” comes in to play. This refers to a technique, referenced in some court rulings, in which authors sometimes omit conjunctions altogether between the enumerated items in a list. The drivers did not provide much evidence to suggest this may have been the case in this dispute.

The judges felt that neither side provided overwhelming evidence to support their argument, but in the end, they ruled in favor of the drivers.

Their reasoning was that the default rule of construction under Maine law for ambiguous provisions in the state’s wage and hour laws is that they “should be liberally construed to further the beneficent purposes for which they are enacted.” They felt a need to interpret the ambiguity in Exemption F in light of the remedial purpose of Maine’s overtime statute. And, when they do, the ambiguity clearly favors the drivers’ narrower reading of the exemption.

If you ‘d like to read more about the Oxford comma, Wikipedia has a fascinating page about it, with many examples, including situations where the use of it could add to the confusion:

“I would like to thank my wife, my best friend, and my role model.”

I’ll leave it to you to interpret that sentence…

image courtesy of grammarly.com

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Jim Borden

Accounting Prof. at Villanova; happily married for 30+ years; father of 3 outstanding young men; vegan; interests: fitness, creativity, education, blogging, social media.

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