One comma left out gives judge pause in Oakhurst overtime case

(Portland Press Herald) — Grammarians rejoice! The Oxford comma survives.

Chances are you’ve never heard of this arcane little punctuation mark, considered by many a useless piece of clutter amid the complexities of proper English usage.

Only, it isn’t. In fact, the absence of an Oxford comma, also known as a serial comma, could soon cost one Maine company a ton of money.

“For want of a comma, we have this case,” began Judge David Barron of the 1st U.S. Circuit Court of Appeals in a unanimous ruling handed down Monday.

The decision reopens the door for a class-action lawsuit against Oakhurst Dairy by its drivers, who claim in a case dating back to 2014 that they illegally were denied overtime pay.

Not so, countered Oakhurst, arguing that state law specifically exempts the drivers from eligibility for overtime compensation.

That would be the same state law that’s apparently missing a serial comma.

The law states that overtime is not required for 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.”


At issue before the Court of Appeals was the phrase “packing for shipment or distribution of” the various perishable products.

Oakhurst claimed, and a lower court agreed, that “distribution” means the company’s drivers and thus exempts Oakhurst from having to pay them overtime.

Not so fast, countered the drivers.

Without a serial comma before the word “or,” both “distribution” and “shipment” flow directly from the phrase “packing for …” Since they drive the trucks and don’t pack anything, the drivers argued, they are not included among the list of exempted jobs.

Put another way, had the statute read “storing, packing for shipment, or distribution,” the drivers would have been out of luck.

Judge Barron, bless him, spent 29 pages examining the absent comma from every conceivable angle.

He looked at the 214-page Maine Legislative Drafting Manual – yes, there is such a thing.

Right there on page 113, it specifically advises, “Although authorities on punctuation may differ, when drafting Maine law or rules, don’t use a comma between the penultimate and the last item of a series.”

Aha! Case closed … or not.

Barron also noted this overarching advice from page 114 of the drafting manual: “Be careful if an item in the series is modified.”

Meaning, without a serial comma, both “shipment” and “distribution” easily can be seen as modifiers for “packing for …” As in “packing for shipment or (packing for) distribution.”

That may be bad news for packers who work more than 40 hours a week. But because the drivers pack nothing whatsoever and are not set apart by a serial comma, Barron reasoned, they still get their overtime.

The judge also plunged bravely into gerunds, which are nouns formed from verbs by adding “ing.” (See: “canning, processing, preserving, freezing, drying, marketing, storing, packing …”)

Because neither “shipment” nor “distribution” is a gerund, noted Barron, they are notably out of sync with the other exempt jobs – further supporting the notion that lawmakers used those words only to modify the job of “packing for …”

(Of course, one could counter that the average Maine legislator doesn’t know a gerund from a gerbil. But hey, the law is the law.)

What really tipped it for the court, however, was existing case law requiring, when ambiguity is found in Maine’s wage-and-hour laws, that they “should be liberally construed to further the beneficent purposes for which they were enacted.”

Because overtime laws are intended to benefit employees, the judge essentially ruled, a tie in this case goes to the drivers.

Augusta attorney David Webbert, representing the drivers, said in an interview Thursday that Judge Barron certainly “earned his paycheck” with this lengthy, erudite decision.

“This is an example of the rule of law actually working for the average person – not the rule of law designed to protect the powerful,” Webbert said. “I think it was a really well-written decision. I was really proud of the Court of Appeals for not taking shortcuts.”

The case now will proceed either to settlement talks – ultimately, this week’s decision could benefit upward of 125 drivers – or additional court proceedings to, as Webbert put it, “add up the money.”

But when that’s all said and done, a timeless lesson will remain: Language without proper punctuation is like a highway with improperly placed road signs. One missed comma and you simply can’t get there from here.

Webbert, who once chaired his local school board and was dismayed to learn that grammar wasn’t taught as a stand-alone subject, sees this as a wake-up call not only for lawmakers, but for us all.

“It’s not just about grammar,” he said. “It’s about communicating well.”

Oxford Comma Wins Court Case For Workers

(The Onion) — Maine dairy workers argued in a recent lawsuit that the lack of an Oxford comma in their contract rendered its overtime exemptions too vague and that they were thus eligible for overtime wages, an argument that won them the case. What do you think?

“What, now you’ve got to follow grammar rules to exploit your workforce?”
Effie Binder

If we don’t demarcate penultimate items in a list from their coordinating conjunctions, just what separates man from the beasts?”
Noel Dierks

“This is why I always check the restraining orders I’m issued for any invalidating punctuation.”
Hugh O’Malley

Oakhurst Drivers to Proceed with Class-Action Overtime Suit

(Mainebiz) — A federal appeals court has ruled in favor of five Maine truck drivers seeking to bring a class-action suit against Oakhurst Dairy over alleged unpaid overtime.

The drivers, who had been on Oakhurst’s payroll from a few years to more than a decade, claim the Portland-based maker of milk, cream, cottage cheese and juices failed to pay them for overtime worked between May 2008 and August 2013, in violation of state and federal law.

They filed a complaint in 2014 claiming they never received overtime compensation to which they had been legally entitled for putting in an average of 12 extra hours a week over the course of more than five years. The lawsuit points to ambiguous language in Maine’s law, which has since been changed.

Interestingly, the dispute centers on a missing comma from a list of activities exempt from the overtime law’s protection. The statute listed “packing for shipment or distribution of perishable goods” as being exempt from the law, raising the question of whether distribution was a separate activity from shipment.

The drivers argue that while they handled perishable goods and were not involved in packing, they were not exempt from protection under the law at the time. But Oakhurst contends that because the drivers engaged in the distribution of dairy products, a separate activity from packing, they did fall into the exempt category.

In its 29-page ruling dated March 13, the court sided with the drivers. Their lawyers say they will now seek to get their class action certified under Maine law and will seek $10 million in damages.

“The problem was the way the statute was drafted by the Legislature was not entirely clear, and we have somewhat jokingly been referring to this case as the $10 million comma case,” Jeffrey Young, an attorney with Johnson, Webbert & Young LLP in Augusta who represents the plaintiffs, told Mainebiz on Tuesday.

He said while it’s too soon to say how many drivers could join the class action, the maximum would be about 75. “That would include any driver who delivered for Oakhurst going back roughly six years from when we filed the suit,” he said.

David Webbert, of the same firm, added in a statement that “our fight for overtime rights has been vindicated by the landmark court ruling and our firm will continue to bring class actions and seek penalties against employers who violate these rights.”

Jennifer Oldvader, an attorney with Ogletree, Deakins, Nash, Smoak & Stewart PC in Kansas City, Mo., representing Oakhurst Dairy in the case, declined to comment when contacted by Mainebiz.

Oakhurst has roots going back to 1921 and was family-owned for three generations. In 2014 it was acquired by Dairy Farmers of America Inc., a Kansas City, Mo.-based based cooperative owned by nearly 14,000 dairy producers in 48 states.

This week’s ruling comes less than a week after Young and his firm secured a court victory against Shaw’s Supermarkets in an age-discrimination suit that could have implications for other employers in Maine.

An Oxford comma changed this court case completely

 (CNN) — If you have ever doubted the importance of the humble Oxford comma, let this supremely persnickety Maine labor dispute set you straight.

A group of dairy drivers argued that they deserved overtime pay for certain tasks they had completed. The company said they did not. An appeals court sided with the drivers, saying that the guidelines themselves were made too ambiguous by, you guessed it, a lack of an Oxford comma.

This is what the law says about activities that do NOT merit overtime pay. Pay attention to the first sentence:

The canning, processing, preserving, freezing, drying marketing, storing, packing for shipment or distribution of:

  • Agricultural produce;
  • Meat and fish product; and
  • Perishable foods.

That’s a lot of things! But if we’re getting picky, is packing for shipment its own activity, or does it only apply to the rest of that clause, ie the distribution of agricultural produce, et al?

See, all of this could be solved if there were an Oxford comma, clearly separating “packing for shipment” and “distribution” as separate things! According to court documents, the drivers distribute perishable food, but they don’t pack it.

Yes, this is the real argument they made. And they really won.

“Specifically, if that [list of exemptions] used a serial comma to mark off the last of the activities that it lists, then the exemption would clearly encompass an activity that the drivers perform,” the circuit judge wrote.

It did not, and since the judge observed that labor laws, when ambiguous, are designed to benefit the laborers, the case was settled.

“For want of a comma, we have this case,” the judge wrote.

The dramatic irony in this ruling is, there are actual state guidelines on how Maine lawmakers draw up their documents. And they do NOT include Oxford commas! The humanity!

To be fair, there is also guidance on how to avoid unclear language that could, say, help an impressively pedantic group of drivers get what they were owed.

(All of you Oxford comma purists out there, go ahead and gloat. We’ll have you know CNN adheres by AP Style which does not include the mark.)

Read the full article here at

David Webbert and Carol Garvan, lawyers for the former director of the Zadoc Long Free Library, say her termination was unlawful.

Former Buckfield library director contests her firing

Read the full article here at the SunJournal.

Lawyers for the former director of the Zadoc Long Free Library say her termination was unlawful.

Bonnie Santos is contesting her firing by Town Manager Cindy Dunn on Jan. 21. The reasons have not been made public. Santos is represented by David Webbert and Carol Garvan of Johnson, Webbert & Young of Augusta. According to Webbert, Dunn gave Santos a four-page letter with her reasons for the termination, but did not initially give Santos an opportunity to respond.

“The town has admitted it has broken its own rules,” Webbert said of the town’s personnel policy. “We hope in light of that we’re going to make things right.”

In a Feb. 2 letter Dunn informed Santos that she had five business days to submit her documents to contest the termination.

. . . . . . . . . .

On Feb. 8, Webbert sent a letter by mail and an email to Conway requesting an extension of the Feb. 10 deadline by two weeks, or preferably 30 days, to submit Santos’ documentation because she is recovering from surgery.

“They knew she was about to have surgery right before they terminated her employment,” Webbert said, adding that he has not heard back on the extension request.

. . . . . . . . . .

Webbert said he sent a separate document explaining his position on the termination being unlawful. In summary, he claims Santos’ termination violated the town’s personnel policy, the Maine Human Rights Act, including the right to medical leave, the Maine Whistleblowers’ Protection Act, the Maine Family Medical Leave requirement law and the federal constitutional right to due process. He said he had not received a response to that, either.

Dunn confirmed that she received this document from Webbert.

. . . . . . . . . .

Santos has been employed with Buckfield since August 2010, first as assistant library director and then as library director. Webbert said Santos was promoted to library director in 2014.

“She had zero discipline in her personnel file. She was there seven years,” he said.

. . . . . . . . . .

Young said the high court’s ruling sets the stage for a filing of a motion to pursue “class action”

High court rules against Shaw’s in age discrimination suit

Read the entire story here at Mainebiz.

Maine’s highest court ruled Tuesday against Shaw’s Supermarkets in an age-discrimination case that could have implications for other employers in the state.

The Maine Supreme Judicial Court ruled Tuesday that Maine employers trying to justify what they consider to be neutral employment policies or practices, but which happen to have a significant adverse “disparate impact” on older workers, are required by state law to meet the same strict standards that have been applied to race and sex bias cases.

The court ruling in “Scamman v. Shaw’s Supermarkets” states that one test Maine employers must apply is a requirement that they look for alternative, equally effective means to accomplish the same goals as the challenged practices, but which have a lesser adverse impact on older workers.

“It adopts a standard for pursuing an age discrimination claim that is easier to meet than the federal standard,” said Jeffrey Young, an attorney with Johnson, Webbert & Young in Augusta. Young represented Louise Scamman and four other Maine full-time employees of Shaw’s Supermarkets whose jobs were terminated in 2012 as part of a reduction in the company’s workforce.

In a phone interview with Mainebiz from the law firm’s Portland office, Young said the high court’s ruling sets the stage for a filing of a motion to pursue “class action” certification for the plaintiffs in the Scamman case and approximately 100 other Shaw’s employees who lost their jobs in 2012 and were between the ages of 50 and 60 years old. He said a class-action lawsuit would seek damages for lost wages for the affected Shaw’s employees in Maine.

A key point in the decision, he said, is that Shaw’s only discharged full-time employees in its 2012 workforce reduction. Because full-time employees were, on average, older than their part-time counterparts, the layoffs affected more older workers than younger employees.

Lori Parham, Maine state director for AARP, which had filed as a “friend of the court” in the case, applauded the court’s ruling.

“The court fully agreed with AARP, the older workers who brought the case, and the Maine Human Rights Commission which also weighed in on the older workers’ side,” she said in a written statement. “This decision preserves a key tool for older workers in Maine who are disadvantaged at work, but cannot show ‘smoking gun evidence’ of their employer’s intent to fire them based on ageism.”

Maine AARP in a release about the ruling stated that the court rejected Shaw’s legal argument that standards in federal law more favorable to employers — under the federal Age Discrimination in Employment Act — also should apply under Maine law. AARP said the court rejected Shaw’s contention that an employer only should have to show that an age-neutral practice hurting the job opportunities of older workers is “reasonable” and not that it is justified by “business necessity.”

“Maine’s Supreme Judicial Court rejected the claim that an employer only should have to show that an age-neutral practice hurting the job opportunities of older workers claim because the ADEA language that creates a ‘reasonable factor other than age’ defense does not appear in Maine human rights law,” AARP stated.

. . . . . . . . . .

Jeff Young at the Rally Against Immigration Ban, “Trump’s actions ‘eerily similar’ to actions taken during the Holocaust

Read the entire story here at the Portland Press Herald

Protesters say ‘immigrants are welcome here’ as 1,500 rally in Portland to oppose Trump’s order

The crowd shows support for Maine’s Muslims and immigrants in response to the president’s suspension of refugee programs and admissions from seven Muslim-majority nations.

About 1,500 people gathered Wednesday afternoon outside Portland City Hall to protest President Trump’s order banning citizens of seven Muslim-majority countries from entering the United States.

People chanted, “No hate. No fear. Immigrants are welcome here,” and held signs with messages such as, “We are all immigrants,” “Build bridges, not walls” and “No to the ban, racism and Islamophobia.” The Portland Street Choir sang “We Shall Overcome” as people arrived for the rally.

Demonstrators spilled out of City Hall Plaza, prompting police to close a short section of Congress Street during the hour-long event.

“I’m so excited that so many people from our community came to show solidarity with the Muslim community,” said event organizer Hamdia Ahmed, a 19-year-old sophomore at the University of Southern Maine.

The protest was sparked by a series of immigration orders by Trump that have drawn widespread condemnation from immigrant, civil rights and human rights advocates, as well as career diplomats in the U.S. State Department.

On Monday, Trump fired acting Attorney General Sally Yates after she ordered the Department of Justice not to defend the order he issued last week to temporarily halt immigration from seven Muslim-majority nations.

Trump’s order includes a 120-day suspension of the U.S. Refugee Admissions Program and a 90-day ban on people entering the U.S. from Iraq, Syria, Iran, Sudan, Libya, Somalia and Yemen – all Muslim-majority nations. The order is widely seen as Trump’s effort to make good on a campaign promise to ban Muslims from entering the U.S.

In response to his action, protesters filled airports across the country last weekend, including the Portland International Jetport, where more than 2,000 people gathered Sunday in opposition to the ban. A separate rally the same day at Portland City Hall drew about 1,200 people.

Portland police estimated Wednesday’s crowd at 1,500 people.

During the rally, Ahmed said a war in Somalia forced her mother to flee with her five children to a refugee camp in Kenya, where the family waited for seven years to earn refugee status, which was granted after a series of interviews and background checks. Like others in the camp, Ahmed’s family wanted only a safe place to live and a chance to build a life.

“Refugees come here to seek safety and now we’re afraid because of the hate we deal with on a daily basis,” she said. “We get told to go back to our country. There are people burning mosques and killing Muslims. Trump’s policy encourages this violence and blames an entire religion for all of the problems in our world.”

Ahmed said she still has family members in refugee camps.

“Some of us are afraid we will not be able to reunite with our families, like me,” she said.

Jeffrey Young, a civil rights attorney, said that as a Jew, he sees Trump’s actions as “eerily similar” to actions taken during the Holocaust. At that time, he said, a fear that Nazi spies would infiltrate the U.S. prompted America to heighten security, tighten visa requirements and ramp up screening. As a result, millions of Jews were killed.

“When I heard of the president’s order, I was reminded of my own ancestors,” Young said. “We can’t let him do it. We are all immigrants. We are all Muslims. We are all Jews. We are all Americans.”

Leslie Silverstein, president of the board of directors of the Portland-based Immigrant Legal Advocacy Project, which provides free legal services to immigrants, sought to reassure the immigrant community.

Rally Against Immigration Ban – Young says, “Today I speak as a Jew … We must keep the door open.”

Read the entire story here at the Bangor Daily News

More than 1,000 rally outside City Hall against Trump’s immigration ban — Shouting “no hate, no fear, Muslims are welcome here,” more than a thousand people gathered outside City Hall Wednesday night to rally against President Donald Trump’s executive order blocking entry to the U.S. for refugees from seven majority Muslim nations.

Everyone from the daughters of Pakistani immigrants to Somali teenagers to Iraqi businesses owners to the mayor of the city turned out to protest for one hour in the cold February air.

“During World War II, quotas kept Jewish people out of this country. What I am seeing today is the same injustice to our Muslim brothers and sisters,” attorney Jeffrey Neil Young told the crowd. “Today I speak as a Jew … We must keep the door open.”

Organized by University of Southern Maine student Hamdia Ahmed, the rally was originally scheduled for last Friday, but because of an anticipated high turnout, it was postponed to ensure the event was safe.

Educator Timothy P Wilson, director of Seeds of Peace, took to the podium to rail against the Ku Klux Klan, which he said was active in 1966 when he taught in Dexter. “That was 50 years ago and we are still fighting the same dumb stuff,” he said.

Pointing to the crowd of immigrants, he assured them: “This is home. You belong in Maine. You came here to have a home.”

Young said Worthy supplied several specific examples of what she alleges are improper billing by Mercy

Read the entire story here at the Portland Press Herald

Former Mercy employee says hospital got millions in improper Medicare payments

A lawsuit filed by Jennifer Worthy claims the Portland hospital and its billing companies engaged in schemes to get higher reimbursements.

A former Mercy Hospital billing official claims the health care provider reaped millions of dollars in improper payments from the Medicare system.

Jennifer Worthy, who had been Mercy’s manager of patient accounts, filed a lawsuit after resigning from the hospital in early 2014. A federal judge in Maine last week denied most of the motions filed by Mercy and two billing companies that were seeking to dismiss her lawsuit, clearing the way for the case to move forward.

. . . . . . . . . .

In her lawsuit, Worthy charges that Mercy and the two billing companies, Accretive and California Healthcare Medical Billing, engaged in a number of schemes to improperly bill Medicare, the government insurance program for the elderly. Those plans included “unbundling” bills and elevating the severity of patients’ visits to doctors – both of which she said resulted in higher bills to Medicare – and removing coding to get around Medicare limits and delays on some bills.

Also named in the lawsuit is Eastern Maine Healthcare Systems, the parent company of Portland-based Mercy Hospital.

The basis for the lawsuit is the False Claims Act, which dates back to the Civil War and was used by President Abraham Lincoln as a tool to prevent the government from being defrauded by contractors. It is often used by whistle-blowers to draw attention to potentially fraudulent government contracts or faulty goods or services provided to the government.

Jeffrey Neil Young, one of Worthy’s lawyers, said the overbilling amounts to “millions” of dollars, but he said more precise accounting won’t be available until lawyers get access to Mercy records as the trial moves forward.

After Worthy sued, the hospital and the billing companies moved to dismiss her allegations. Now that Woodcock has said most of the case can move forward, Mercy is supposed to reply to the lawsuit itself by early February, Young said.

Then, lawyers will begin exchanging records and taking depositions. Young said he doesn’t expect the case to be tried in court until next year.

Worthy claims that when she was a Mercy employee, she repeatedly objected to the practices used by Accretive and CHMB, but Mercy officials failed to force the companies to change their methods. Accretive’s methods have been criticized before, including in Minnesota, where state officials said the company stationed debt collectors in emergency rooms and demanded that patients pay their bills before getting treatment.

The hospital and companies asked Woodcock to throw out the case because they argued that it wasn’t specific enough. But Woodcock instead said Worthy’s allegations are “copious and dense” and he needed 34 pages to summarize them in his order denying most of the hospital and billing companies’ motions to dismiss.

Young said Worthy supplied several specific examples of what she alleges are improper billing and will be able to provide more once lawyers gain access to more of the hospital’s records.

. . . . . . . . . .

Worthy alleged that her resignation was a “constructive dismissal” by the hospital because she was working in a hostile environment and Mercy ignored her repeated complaints about the billing practices, creating intolerable conditions for her to continue working. Young said that even though the judge dismissed part of Worthy’s lawsuit that alleged she was wrongfully discharged, she may be able to pursue that claim by other means.

Young said Worthy now works as director of patient financial services for another health care provider.

Attorney Jeffrey Young says, “Ms. Worthy risked her career to protect the taxpayers”

Read the entire story here at MPBN.

Lawsuit Alleges Mercy Hospital Collected Millions in Fraudulent Medicare Billing

A lawsuit alleging that Mercy Hospital in Portland and its billing companies collected millions of dollar from Medicare through a number of fraudulent billing schemes, such as double billing, can move forward now that a federal judge has refused to dismiss most of the counts in the suit.

The complaint was filed in April 2014 by Jennifer Worthy, Mercy’s former patient accounts manager, who also claims in the suit that she was the victim of retaliation because of her efforts to the stop the unlawful billing practices.

“The complaint alleges 10 different schemes, which Ms. Worthy says she observed, and again I want to emphasize that those are allegations based on her observations. They still remain to be proven,” says Attorney Jeffrey Young, who is representing Worthy. “She has, in essence, risked her career to protect the taxpayers, you and me, from what she observed to be unlawful billing of the government.”