• LinkedIn
  • YouTube
  • Twitter
  • Facebook
  • Google+

One missing comma = $10 million FLSA liability

Get PDF file

by on
in Office Management,Payroll Management

The lack of one pesky comma can sure cause a great deal of trouble. A federal appeals court has ruled that Maine’s overtime law, which omits a comma from a list of overtime-exempt activities, meant that employees were entitled to overtime, after all. (O’Connor v. Oakhurst Dairy, No. 16-1901, 1st Cir., 2017)

,,,,,,,,, or ,,,,,,,. Under Exemption F of Maine’s overtime law, nonexempt employees who perform the following activities are exempt from overtime: The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of agricultural produce; meat and fish products; and perishable foods.

SERIAL COMMAS: A serial comma appears in between the last two items in a list. Many style manuals omit it. So, in the sentence—We went to the park and played softball, baseball, and soccer—the comma between baseball and soccer is a serial comma.

The overtime dispute involved the phrase packing for shipment or distribution. The delivery drivers argued that, in combination, the words referred to the single activity of “packing,” regardless of whether the packing was for “shipment” or “distribution.” On the other hand, the employer contended that the disputed words referred to two separate exempt activities—the first being “packing for shipment” and the second being “distribution.”

A federal trial court ruled in the employer’s favor and the employees appealed.

Ambiguity favors employees. The appeals court, noting that the lack of a serial comma between the words in the disputed phrase created ambiguity regarding the reach of the overtime exemption, reversed the trial court’s decision.

Appeals court: If Exemption F had read: The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment, or distribution of agricultural produce, employees would clearly lose. But considering the phrase lacked a comma, ambiguous statutes must be read to further the remedial purpose of the law, which is to cover as many employees as possible. Employees, therefore, were entitled to $10 million in overtime pay.

BRUSH UP YOUR PUNCTUATION: The appeals court didn’t go out on a limb in ruling for the employees, since it’s common for ambiguities in remedial laws like federal and state wage-and-hour laws to be resolved in employees’ favor. The court, in fact, consulted several style manuals and punctuation rules before reaching its decision. It’s a safe bet that employees’ attorneys will now become comma queens.

To do: Review your employee handbook to see whether inserting serial commas will clear up uncertain language. Then take a look at your state overtime law to assess the same.

Leave a Comment