By Paul Emanuelli

This article is an excerpt from The Art of Tendering: A Global Due Diligence Guide, which is available for purchase.

In its March 2017 decision in O’Connor v. Dairy Farmers of America, Inc., the United States Court of Appeals – First Circuit considered a dispute, reportedly worth $5 million (USD), between a Maine dairy company and its delivery drivers involving overtime pay entitlements. The case turned on a missing comma in the state’s overtime pay laws. That law stated that the overtime payment protections that required employers to pay “time and a half” after 40 hours per week did 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.

While canning, processing, preserving, freezing, drying, marketing, and storing for agriculture produce, meat and fish products, or perishable foods were all seen as excluded activities not covered by the overtime pay laws, the dispute in this case turned on the phrase “packing for shipment or distribution”. Although the delivery drivers performed “distribution”, they did not provide “packing” services. It was not clear whether the clause in question should be read in its entirety as one category of excluded work, or whether it was intended to exclude “packing for shipment” as a separate category from “distribution.” If the clause is read as a single category, then the drivers would not be caught by the exclusion and would therefore be entitled to overtime pay under the statute. However, if the clause is read as the two separate categories of “packing for shipment” and “distribution”, then the drivers would be caught within the “distribution” exception and would not be entitled to overtime pay.

After a detailed consideration of the competing interpretive arguments, and a consideration of the potential intention behind the legislation, the Court concluded that the statutory clause was inherently ambiguous – the exclusions should not apply to the drivers, who ought to enjoy the protections contemplated by the statute for overtime pay, rather than be caught within an exception to those protections:

We conclude, however, that Exemption F is ambiguous, even after we take account of the relevant interpretive aids and the law’s purpose and legislative history. For that reason, we conclude that, under Maine law, we must construe the exemption in the narrow manner that the drivers favor, as doing so furthers the overtime law’s remedial purposes. See Dir. Of Bureau of Labor Standards v. Cormier, 527 A.2d 1297 (Me. 1987).

To support its ruling, the Court noted past precedent, which recognized that when faced with an ambiguity, the benefit of the doubt should go to the interpretation that assisted in expanding, rather than limiting, the overtime pay protections contemplated under the statute:

We are not, however, without a means of moving forward. The default rule of construction under Maine law for ambiguous provisions in the state’s wage and hour laws is that they “should be liberally construed to further the beneficent purposes for which they are enacted.” Dir. of Bureau of Labor Standards v. Cormier, 527 A.2d 1297, 1300 (Me. 1987).

The Court therefore reversed a lower court decision that denied the drivers their overtime pay. Buried within a footnote of its judgment, the court also provided commentary on the importance of the “serial comma” (often referred to in editing circles as the “Oxford Comma”) in helping to avoid ambiguities within provisions that contain long running lists:

Before leaving our discussion of serial commas, we would be remiss not to note the clarifying virtues of serial commas that other jurisdictions recognize. In fact, guidance on legislative drafting in most other states and in the Congress appears to differ from Maine’s when it comes to serial commas. Some state legislative drafting manuals expressly warn that the absence of serial commas can create ambiguity concerning the last item in a list. One analysis notes that only seven states – including Maine — either do not require or expressly prohibit the use of the serial comma. See Amy Langenfeld, Capitol Drafting: Legislative Drafting Manuals in the Law School Classroom, 22 Perspectives: Teaching Legal Res. & Writing 141, 143-144 (2014); see also Grace E. Hart, Note, State Legislative Drafting Manuals and Statutory Interpretation, 126 Yale L.J. 438 (2016). Also, drafting conventions of both chambers of the federal Congress warn against omitting the serial comma for the same reason. See U.S. House of Representatives Office of the Legislative Counsel, House Legislative Counsel’s Manual on Drafting Style, No. HLC 104-1, § 351 at 58 (1995) (requiring a serial comma to “prevent[] any misreading that the last item is part of the preceding one”); U.S. Senate Office of the Legislative Counsel, Legislative Drafting Manual § 321(c) at 79 (1997) (same language as House Manual).

As this case illustrates, the inexact use of commas can lead to ambiguous provisions that serve as catalysts for protracted litigation. The careful drafting and editing of documents, and the precise treatment of commas, can better ensure the clarity of intention. Taking the time to ensure precision in the drafting process is a far better option than rushing to market with documents that are embedded with ambiguities that can only be resolved through costly and complex legal proceedings.