Government Lawyers Newsletter
The newsletter of the ISBA’s Standing Committee on Government Lawyers

May 2017, vol. 18, no. 4

The $10 million comma

How much of a difference can a comma really make? One recent federal appellate court decision may put the cost of a single missing comma at $10 million.

On March 13, 2017, the First Circuit Court of Appeals1 reversed a lower court’s decision because of a missing comma. This missing comma created a significant-enough ambiguity within Maine’s overtime wage law leading to the reversal.2 The remanded matter may cost a Maine dairy company $10 million in overtime wages to its employees.

First, a quick lesson on punctuation: a serial comma or series comma (also called an Oxford comma or a Harvard comma) is a comma placed immediately before the coordinating conjunction (usually “and” or “or”) in a series of three or more terms. For example, a list of three Illinois counties might be punctuated either as “Hardin, Pope, and Calhoun” (with the Oxford comma), or as “Hardin, Pope and Calhoun” (without the Oxford comma).3, 4

Now, back to the missing Oxford comma. In 2014, three Maine truck drivers sued Oakhurst Dairy, seeking more than four years’ overtime pay. The workers argued that they were owed overtime based on Maine’s overtime law. The overtime law requires workers to be paid 1.5 times their normal rate for each hour worked over 40 hours a week. However, Maine’s overtime law also has some exceptions. The exceptions to Maine’s overtime law were the subject of the dispute because the overtime law precluded employees 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.”5

The drivers contended that this exception to the overtime law did not apply to them because the exception refers to the single activity of “packing,” whether the “packing” is for “shipment” or for “distribution.” The drivers contended that, although they do handle perishable food, they do not engage in “packing” them.6

The dairy responded that the disputed words refer to two distinct exempt activities, with the first being “packing for shipment” and the second being “distribution.” Because the delivery drivers engage in distribution, the exception to the overtime law applies and the employees are not entitled to overtime pay.7

Twenty-five pages later, and after exploring the ambiguities caused by the missing Oxford comma within Maine’s overtime law, the Appellate Court found there was enough ambiguity created by the missing Oxford comma that the court had to consider the legislative intent of Maine’s overtime law. In considering the legislative intent of the overtime law, the court adopted the delivery drivers’ reading of the statute because it furthered the broad remedial purpose of the overtime law, which was to provide overtime pay protection to employees.8

The Court reached this conclusion even though Maine’s 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.” However, that same manual also contained a warning to “be careful if an item in the series is modified” and sets out several examples of how lists with modified or otherwise complex terms should be written to avoid the ambiguity that a missing Oxford comma would otherwise create.9

The Court noted that guidance on legislative drafting in most other states, and in the U.S. Congress, appears to differ from Maine’s when it comes to the use of the Oxford comma. In fact, some state legislative drafting manuals, including Illinois, expressly warn that the absence of Oxford commas can create ambiguities concerning the last item in a list. One analysis noted that only seven states either do not require or expressly prohibit the use of the Oxford comma.10

What about Illinois? Illinois favors the drafting of clear statues and rules. In fact, the 2012, Illinois Legislative Drafting Manual covers the Oxford comma as follows:

“As a general rule, placing a comma before the conjunction will be clear, but omitting the comma may cause ambiguity. Because clarity is one of the cardinal virtues in drafting statutes, follow the practice of inserting a comma before the conjunction.

Potentially ambiguous:

Real estate is classified as vacant, residential, farm, commercial and industrial.

In the example, are there 4 or 5 categories? Is “commercial and industrial” one category, or are “commercial” and “industrial” 2 categories?

Clearly 5 categories: Real estate is classified as vacant, residential, farm, commercial, and industrial.

Clearly 4 categories: Real estate is classified as (i) vacant, (ii) residential, (iii) farm, and (iv) commercial and industrial.”11

The debate over the using the Oxford comma will likely not be resolved anytime soon, and it may get costly. In fact, a 2014 survey of 1,129 Americans by FiveThirtyEight and SurveyMonkey Audience found that 57 percent of Americans favor the use of the Oxford comma and 43 percent were opposed.12

However, one thing is clear: clarity is king. If an Oxford comma provides clarity, use it.

__________

1. The First Circuit Court of Appeals has federal appellate jurisdiction over Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island.

2. O’Connor v. Oakhurst Dairy, No. 16-1901 (1st Cir. 2017), available at http://cases.justia.com/federal/appellate-courts/ca1/16-1901/16-1901-2017-03-13.pdf (last visited Apr. 24, 2017).

3. Serial Comma, Wikipedia.Org, https://en.wikipedia.org/wiki/Serial_comma (last visited April 24, 2017).

4. Most all style guides mandate the use of the Oxford comma, including the APA Style Guide, The Chicago Manual of Style, The MLA Style Manual, Strunk and White’s Elements of Style, the U.S. Government Printing Office Style Manual, and Garner’s Modern American Usage. Garner, Bryan A. (2009). Garner’s Modern American Usage (3rd ed.). Oxford University Press. p. 676.

5. O’Connor v. Oakhurst Dairy, No. 16-1901, p. 4 (1st Cir. 2017).

6. Id.

7. Id.

8. Id. at 29.

9. Id. at 15.

10. Amy Langenfeld, Capitol Drafting: Legislative Drafting Manuals in the Law School Classroom, 22 Perspectives:

Teaching Legal Res. & Writing 141 (2014), available at https://info.legalsolutions.thomsonreuters.com/pdf/perspec/2014-spring/2014-spring-10.pdf (last visited Apr. 24, 2017).

11. Legislative Reference Bureau, Illinois Bill Drafting Manual 232 (2012), available at http://www.ilga.gov/commission/lrb/manual.pdf (last visited Apr. 24, 2017).

12. Elitist, Superfluous, Or Popular? We Polled Americans on the Oxford Comma, Fivethirtyeight.com, https://fivethirtyeight.com/datalab/elitist-superfluous-or-popular-we-polled-americans-on-the-oxford-comma/ (last visited April 24, 2017).