When I began practicing law, an older, wiser senior associate walked into my office, handed me a copy of The Elements of Style by William Strunk Jr. and E.B. White and told me that I should make a habit of reading it every year. It was good advice for a young lawyer embarking on a career where success is largely measured by one’s ability to communicate in writing.
Strunk & White advise: “[i]n a series of three or more terms, with a single conjunction, use a comma after each except the last.” The comma before the conjunction is called the “Oxford comma” and it has become one of the most controversial punctuation marks. People either love the Oxford comma or they hate it. It is rarely favored in mainstream newsrooms and infrequently used in legal memoranda and court opinions. Indeed, the Oxford comma seems to have worked its way out of our every-day grammar rules and many people rejoice in its absence.
At least one state has gone so far as to expressly instruct legislators to omit the Oxford comma. The Maine Legislative Drafting Manual advises legislators to avoid ambiguity and be careful of terms that are modified. It also, however, expressly instructs legislators not to use the Oxford comma. I am certain that the authors of the Drafting Manual had the best intentions, but as O’Connor et al. v. Oakhurst Dairy, No. 16-1901, — F.3d —, 2017 WL 957195 (1st Cir. March 13, 2017) demonstrates, blanket prohibitions can be problematic when it comes to prose.
The Oakhurst Dairy case began in 2013 when three dairy drivers sued their employer for four years of unpaid overtime. The case subsequently developed into a class action. Maine’s wage and hour statute requires employers to pay one-and-a-half times the regular hourly rate to employees who work more than 40 hours per week. The overtime rule does not apply, however, to 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.” 26 M.R.S.A. § 664(3)(F). The issue in Oakhurst Dairy was the meaning of the words “packing for shipment or distribution.” Did the legislature mean to exempt those employees engaged in either “packing for shipment” or “distribution”? Or did the legislature mean to exempt those employees engaged in packing “for shipment or distribution”?
There is no question that the dairy drivers do not “pack” dairy products but they do “distribute” dairy products. The federal district court read an Oxford comma into the overtime rule (i.e., “packing for shipment, or distribution of”) and found that the dairy drivers were exempted from overtime pay because they were engaged in the “distribution” of perishable foods. Nevertheless, the drivers persisted. On March 13, 2017, the First Circuit Court of Appeals reversed the lower court’s grant of summary judgment for Oakhurst Dairy and found for the dairy drivers.
