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No serial comma means employees have OT case

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in Employment Law,Human Resources

In court, there are no ifs, ands or buts about it: Punctuation matters.

Ruling on a lawsuit that pitted 75 truck drivers against a Maine dairy, the 1st Circuit Court of Appeals said the decisive factor was a missing serial comma. That’s the comma that sometimes follows the second-to-last item in a list of three or more.

The Maine law in question states that agricultural workers are entitled to overtime pay except when they are engaged in “canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution” of various foods.

The dairy said “packing for shipment or distribution” referred to two separate activities—packing and distributing. The drivers contended that if that’s what legislators meant, they should have placed a comma in the string of verbs: “packing for shipment, and distribution.”

No comma, they said, meant there was just one activity: packing. The drivers did no packing but did distribute—for 50 to 60 hours each week—so they said they should get overtime.

The court agreed. The missing comma created enough ambiguity to tip the scales in the drivers’ favor. “For want of a comma, we have this case,” the court noted. It remanded the case to a lower court. (O’Connor v. Oakhurst Dairy, 1st Cir., 2017)

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