Punctuation matters

Anyone who has read my blogging or just talked to me about writing, grammar, etc., knows that I am a great fan of the the serial comma.  I’ve written about it in past.  Among grammar nerds (because that’s a thing, these days), the serial comma (also known as the Oxford comma)–the comma included before the final conjunction concluding a list–is quite the cause célèbre, of late.  Though certain journalistic style guides may eschew its use, many who write for a living endorse it with great enthusiasm.

So it’s nice to see a federal court throw its hat into the ring in support of the Oxford comma; and not just any court but a federal court of appeals.  In O’Connor v. Oakhurst Dairy, the First Circuit Court of Appeals considered the applicability of Maine’s overtime laws to drivers whose job was to deliver perishable dairy products.  The law generally provides time and a half for hours worked over 40 in a single week, but it makes a few exceptions.  One of those exceptions states that the law’s overtime provisions do not extend 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.

The drivers wanted overtime pay.  Their employer didn’t want to pay it.

The Court’s whole discussion came down to the presence (or non-presence) of an Oxford comma following the word “shipment.”  The drivers contended that the lack of a comma in the overtime statute meant that “packing for shipment or distribution” was a single activity and that, while they certainly engaged in “distribution” of perishable products, they did not engage in “packing” for that purpose, thus they were entitled to overtime.  Their employer argued that “packing for shipment” was one activity and “distribution” was another, and, since the drivers admittedly engaged in “distribution,” they were not entitled to overtime.

When a remedial statute like an overtime provision is ambiguous, it’s one of the basic canons of statutory construction that courts will interpret that statute broadly.  That’s because, when a legislature writes a remedial statute, courts have to presume that the legislature is going all out; that it’s trying to provide as much remedy as the language it writes will provide.  (In case anyone is wondering, that’s not judicial activism.  That’s deference to the role of the legislature.  Courts are required to assume–often incorrectly–that legislators actually know what they are doing.)  The First Circuit held that the lack of an Oxford comma made the Maine statute’s meaning, at best, ambiguous.  That is, whether the legislature intended “packing for shipment or distribution” to be one activity or two activities was not obvious.  Because of that, the rules of statutory construction required the Court to apply the remedial measure–overtime pay–broadly.  Unless the employer could show unambiguously that the drivers’ activity fell within the exemption to the statute, they were entitled to overtime.

For those of us who obsess over this kind of thing, cases like O’Connor provide a real warm fuzzy.  As much as all the internet memes may bolster our resolve, there’s nothing like recognition from a learned three.  “They’re,” “their,” and “there” are next.  Internet, you’re on notice.