As an attorney, we often see litigation over poorly drafted contracts which leads to conflicting interpretations. Judges are asked and required to consider word choice, sentence structure, and grammar to determine the meaning of a contract or law. History is replete with situations where a comma (or the lack thereof) was the turning point. In a recent case, a dispute regarding the lack of an “Oxford comma” meant the difference between an employer owing nothing or $10 million dollars to its employees.

What is an Oxford Comma? An Oxford comma, also known as a “serial” or “series” comma, is a comma that is placed before the conjunction (usually “and” or “or”) in a series of three or more terms. For example, the phrase “red, yellow, and purple” includes the Oxford comma, while the phrase “green, blue and pink” omits the Oxford comma. Many students today are taught either that the Oxford comma is unimportant, or to intentionally omit it from their writing. For example, the AP Style Guide (governing newspaper and media drafting) does not require the use of the Oxford comma, making it “mainstream” to omit the extra comma.

Why is the Oxford Comma Important? In a recent case, the omission of an Oxford comma in a Maine employment law overtime statute ended with a Court ruling that truck farmers were included in a statute requiring overtime payments, causing the employer to potentially be liable to the employees for $10 million of overtime pay. In the case of O’Connor v. Oakhurst Dairy, 851 F.3d 69 (1st Cir. March 13, 2017), the Court reviewed a Maine statute exempting from overtime laws “[t]he 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) (emphasis added). The plaintiffs were delivery drivers for Defendant Oakhurst Dairy, a dairy company. If the statute was read as two separate activities: “packing for shipment” or just “distribution,” then the delivery drivers would clearly fall under the exemption because they were part of the dairy distribution process. However, if the statute was read as one activity: “packing,” whether the packing was for “shipment” or for “distribution,” then the workers would not fall under the exemption because they did not pack the dairy products.

On appeal, the Court carefully reviewed the plain language of the statute and compared it with drafting guidelines for the Maine legislature, ultimately determining that the statute was ambiguous because it could be ready both ways. The Court then considered the legislature’s intent in creating the statute, including the legislative history, but found no evidence, one way or the other, whether the statute was intended to include the dairy delivery drivers. Finally, the Court considered a default “rule of construction” that wage and hour laws “should be liberally construed to further the beneficent purposes for which they are enacted.” Under this rule of construction, the delivery drivers should be included in the overtime laws to receive the benefit of the law’s remedial purpose. Therefore, the Court agreed with the delivery drivers’ reading of the statute: since the drivers were not engaged in packing for shipment or packing for distribution, they were not excluded from the overtime laws.

Given that the delivery drivers earned around $50,000 per year without overtime and should have received some overtime equal to 1.5 times their normal rate, the lack of a comma is estimated to cost Oakhurst Dairy $10 million.

Quality Drafting and Interpretation is Important. Companies such as Oakhurst Dairy should be sure to seek quality legal guidance on drafting and interpretation of contracts and laws. Had Oakhurst Dairy been advised years prior that their delivery drivers may be subject to overtime because of the ambiguous statute, the company may have engaged in different employment techniques to limit overtime and pay overtime to drivers as it accrued, rather than paying the overtime plus interest and possibly other damages years later. Similarly, companies and individuals should seek quality legal reviewers and drafters for their contracts to minimize ambiguities and limit liability arising from conflicting contract interpretations. GCK’s attorneys are skilled in interpreting statutory and contractual language, drafting to curtail liability exposure, and designing strategies to tackle existing risk.

Don’t let a simple grammatical mistake destroy your business. Seek legal help

Sandra Mertens
[email protected]