eDiscovery Daily Blog

Lack of Comma Means That Breaking Up Overtime Pay is Hard to Do: Litigation Trends

Do do do

Down dooby doo down down

Comma, comma, down dooby doo down down

Comma, comma, down dooby doo down down

Breaking up is hard to do

Not since Neil Sadaka’s classic song has a “comma” meant so much.  A class-action lawsuit about overtime pay for truck drivers has come down to punctuation and the lack of an Oxford comma has resulted in an appeals court reversal of a partial summary judgment by a lower court.

As reported by Newser (Dairy Drivers in Maine Are Celebrating a Missing Comma, written by Jenn Gidman), dairy drivers in Maine won an appeal because of a missing Oxford comma. In the suit over overtime pay against Oakhurst Dairy, first filed in 2014, drivers complained that a list of tasks not eligible for overtime did not make it clear whether “distribution” counted, mainly because of the lack of the Oxford comma.

FWIW, an Oxford comma is defined as a comma used after the penultimate item in a list of three or more items, before ‘and’ or ‘or’ (e.g. Michelangelo was an Italian painter, sculptor, and architect).  Some believe it should be used and others don’t, so the usage of it varies.

In this case, three truck drivers sued Oakhurst Dairy in 2014, seeking more than four years’ worth of back overtime pay that they had not been paid. Maine law requires workers to be paid 1.5 times their normal rate for each hour worked after 40 hours, but it also identifies certain exemptions, as noted in Maine state law, which says (in Exemption F) that overtime rules do not apply to:

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.

So, does that mean overtime rules don’t apply to packing for shipment and they also don’t apply to distribution?  Or does it mean that overtime rules don’t apply to packing, for shipment or distribution?

The district court ruled the former, which interpreted the law as excluding those involved in distribution (e.g., truck drivers) from overtime pay.  The drivers appealed, and in a 29-page court decision handed down on Monday, the First Circuit Court of Appeals reversed the District Court’s grant of partial summary judgment to the defendant.  Referring to the language as “ambiguous”, the Court stated:

“Given that the delivery drivers contend that they engage in neither packing for shipment nor packing for distribution, the District Court erred in granting Oakhurst summary judgment as to the meaning of Exemption F. 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.”

The amount at stake could be as much as $10 million.  Thanks to the absence of an Oxford comma, those truck drivers may yet recoup that amount.

So, what do you think?   Can you think of any other cases that may have turned on punctuation?  Please share any comments you might have or if you’d like to know more about a particular topic.

Happy St. Patrick’s Day!!

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

  • Doug Austin

    Haha! Actually, just couldn’t resist this story. I guess a person who writes a lot can appreciate a story where a case turns on a comma. Back to eDiscovery stories next week, I promise! 🙂

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