Bob CollinsThe Oxford comma — also known as a serial comma — will soon be extinct and a lot of people would like to make a federal case out of it.
Someone has.
The serial comma and its importance is the big winner in a Boston federal courtroom, Quartz reports.
The Oxford comma is the final comma in a list of things and it’s been under assault in recent years as archaic and unnecessary.
Tell it to the judge.
It involves a federal case about whether a dairy in Maine has to pay overtime to its drivers.
The law lists activities that don’t require paying overtime.
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.
You’ll note there is no comma between “shipment” and “or”, which could mean that “packing for shipment” is one activity and “distribution of” is another. Or it should mean that “packing for shipment or distribution” is one activity.
Which is it? Overtime rests on the answer.
A little respect for the Oxford comma, please. Its use could answer the question in a second. No need for the high-priced lawyers.
Judge David Barron wrote that the case comes down to the comma.
On one side, he says, we have the driver’s grasp of punctuation:
The delivery drivers contend that, in combination, these words refer to the single activity of “packing,” whether the “packing” is for “shipment” or for “distribution.” The drivers further contend that, although they do handle perishable foods, they do not engage in “packing” them. As a result, the drivers argue that, as employees who fall outside Exemption F, the Maine overtime law protects them.
And on the other side, we have the dairy, which favors the newfangled interpretation of sentence construction.
Oakhurst notes, rightly, that there is no conjunction before “packing,” but that there is one after “shipment” and thus before distribution.” Oakhurst also observes that Maine overtime law contains two
other lists in addition to the one at issue here and that each places a conjunction before the last item.
Oakhurst, the dairy, conceded that the use of a comma would make all of this unnecessary. But, the judge noted, the lawmakers of Maine aren’t comma-friendly to begin with.
Oakhurst acknowledges that its reading would be beyond dispute if a comma preceded the word “distribution” and that no comma is there. But, Oakhurst contends, that comma is missing for good reason. Oakhurst points out that 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.”
Without the comma, however, the gerunds of the law had to do the heavy lifting.
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.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.
The Court of Appeals judges ruminated on commas, gerunds, and prepositions and end up back where they started: unable to declare for sure what the law’s authors intended.
And so they depended on a precedent that requires judges in Maine to interpret labor laws liberally.
If the drivers engage only in distribution and not in any of the standalone activities that Exemption F covers — a contention about which the Magistrate Judge recognized possible ambiguity — the drivers fall outside of Exemption F’s scope and thus within the protection of the Maine overtime law.
And the drivers got their overtime.
Here’s the entire ruling.
