The Oxford Comma has become a rallying cry for grammar enthusiasts and has prompted a number of hilarious, if often inappropriate memes. But now the dispute over style and punctuation has gotten serious, deciding the fate of several workers’ claim for overtime pay in Maine.
It’s not often I get to write a case summary on this blog. In my work ghostblogging for other lawyers, I have reviewed a wide variety of legal opinions, from auto law to employment discrimination, and even tax decisions. But I didn’t expect that a legal decision would make its way onto a blog about writing, grammar, and style. I was wrong.
The 1st Circuit Court of Appeals’ recent decision in O’Conner v Oakhurst Dairy rises and falls on the absence of the hotly disputed Oxford Comma. In the end, the judges decide that the lack of punctuation created an ambiguous statute entitling a class of dairy workers to overtime pay for their work.
What Is An Oxford Comma?
The Oxford comma, also known as the serial comma, is the punctuation that comes before the “and” or “or” at the end of a list. It has always been optional under formal grammar rules. But omitting it can lead to some confusion. Take a look at this example from The Write Practice:
“Amanda found herself in the Winnebago with her ex-boyfriend, an herbalist and a pet detective.
Amanda found herself in the Winnebago with her ex-boyfriend, an herbalist, and a pet detective.”
The first sentence implies that Amanda’s ex-boyfriend is both an herbalist and a pet detective. But in the second sentence, the Oxford Comma makes clear that the ex-boyfriend, the herbalist, and the pet detective are three different people.
Federal Court Says Oxford Commas Matter
The O’Connor v Oakhurst Dairy opinion begins:
“For want of a comma, we have this case.”
The lawsuit between dairy delivery drivers and their employer asked the court to interpret Maine’s overtime protections, including Exemption F which says no overtime pay is needed for:
“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 problem was that the delivery drivers did not pack anything, but they did distribute. So whether they were entitled to overtime pay depended on whether the statute was meant to exclude “packing for shipment or distribution” or “packing for shipment, or distribution”.
The Main Legislative Drafting Manual says there is no need for an Oxford Comma:
“When drafting Maine law or rules, don’t use a comma between the penultimate and the last item of a series.”
But the manual also emphasizes the need for clarity in serial lists that include modifiers (like “packing for shipment”). Because this list was ambiguous, the court said the drafting manual didn’t decide the issue.
In an opinion sure to delight grammar geeks everywhere, the court explained how the imperfectly drafted list created ambiguity. Read one way, the statute failed to comply the parallel usage convention, which says each item in a list should begin with the same part of speech, in this case gerunds. Read another, it omitted a conjunction before the final item in the list, another no-no for grammarians.
Maine’s overtime laws instruct that ambiguity should be interpreted in favor of “the beneficent purposes for which they are enacted.” In this case, that means the missing Oxford Comma will give the dairy drivers another shot. If they can convince the trial court that their jobs don’t involve “packing for shipment” or “packing for delivery” they may be able to get the overtime pay they want.
Every lawyer knows that a badly written statute can cause a landslide of lawsuits. But O’Connor v Oakhurst Dairy suggests that even a missing comma can be the difference between substantial relief and “case dismissed.”
Lisa Schmidt is a writer for Legal Linguist. She provides writing services for law firms and small businesses. If you need help meeting your briefing deadlines, contact Legal Linguist to schedule a meeting.