Comma comeuppance: When rogue punctuation proves costly

(BBC)—A US dairy faces an overtime bill of about $10m (£8m), after a group of truck drivers won a pay dispute that hinged on some punctuation.

An appeal court sided with the drivers, saying the lack of a comma in the state of Maine’s overtime laws made the regulations too ambiguous.

The ruling has been branded “profoundly nerdy” by Quartz, while the Guardian says it “will delight grammar nerds and Oxford comma enthusiasts anywhere”.

So how did it happen?

Well, Maine’s law says the following activities do not qualify for overtime pay: “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.”

The drivers said the lack of a comma between “shipment” and “or distribution” meant the legislation applied only to the single activity of “packing”, rather than to “packing” and “distribution” as two separate activities.

And because drivers distribute the goods, but do not pack them, they argued they were therefore eligible for overtime pay – backdated over several years.

A district court had earlier ruled in favour of the dairy firm.

But circuit judge David J Barron overturned that, writing: “We conclude that the exemption’s scope is actually not so clear in this regard.

“And because, under Maine law, ambiguities in the state’s wage and hour laws must be construed liberally in order to accomplish their remedial purpose, we adopt the drivers’ narrower reading of the exemption.”

Their employer, Oakhurst Dairy, is likely to appeal.

But if it were to ultimately lose, it would not be the first business to fall foul of punctuation problems, spelling mistakes and typos.

A Few Words about the Ten-Million-Dollar Serial Comma

(The New Yorker) —The case of the Maine milk-truck drivers who, for want of a comma, won an appeal against their employer, Oakhurst Dairy, regarding overtime pay (O’Connor v. Oakhurst Dairy) has warmed the hearts of punctuation enthusiasts everywhere, from the great dairy state of Wisconsin to the cheese haven of Holland.

Nothing, but nothing—profanity, transgender pronouns, apostrophe abuse—excites the passion of grammar geeks more than the serial, or Oxford, comma. People love it or hate it, and they are equally ferocious on both sides of the debate. Individual publications have guidelines that sink deep into the psyches of editors and writers. The Times, like most newspapers, does without the serial comma. At The New Yorker, it is a copy editor’s duty to deploy the serial comma, along with lots of other lip-smacking bits of punctuation, as a bulwark against barbarianism.

While advocates of the serial comma are happy for the truck drivers’ victory, it was actually the lack of said comma that won the day. Here are the facts of the case, for those who may have been pinned under a semicolon. According to Maine state law, workers are not entitled to overtime pay for the following activities: “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.”

The issue is that, without a comma after “shipment,” the “packing for shipment or distribution” is a single activity. Truck drivers do not pack food, either for shipment or for distribution; they drive trucks and deliver it. Therefore, these exemptions do not apply to drivers, and Oakhurst Dairy owes them some ten million dollars.

Judge David J. Barron’s opinion in the case is a feast of subtle delights for anyone with a taste for grammar and usage. Lawyers for the defense conceded that the statement was ambiguous (the State of Maine specifically instructs drafters of legal statutes not to use the serial comma) but argued that it had “a latent clarity.” The truck drivers, for their part, pointed out that, in addition to the missing comma, the law as written flouts “the parallel usage convention.” “Distribution” is a noun, and syntactically it belongs with “shipment,” also a noun, as an object of the preposition “for.” To make the statute read the way the defendant claims it was intended to be read, the writers would have had to use “distributing,” a gerund—a verb that has been twisted into a noun—which would make it parallel with the other items in the series: “canning, processing,” etc. To the defendant’s contention that the series, in order to support the drivers’ reading, would have to contain a conjunction—“and”—before “packing,” the drivers, citing Antonin Scalia and Bryan Garner, said that the missing “and” was an instance of the rhetorical device called “asyndeton,” defined as “the omission or absence of a conjunction between parts of a sentence.”

Lest we lose perspective, this law on the books of the State of Maine applies to people who work with perishable foods, and the point is that pokey employees should not be rewarded for taking their sweet time getting the goods to market. Possibly (but improbably) for this reason, in an effort to illustrate (or not) ambiguity in a series, the coverage of O’Connor v. Oakhurst Dairy served up a lot of food imagery. The Times noted that it would break with style and add the serial comma in the following sentence: “Choices for breakfast included oatmeal, muffins, and bacon and eggs.” The Guardian, too, would avoid ambiguity at the breakfast table: “He ate cereal, kippers, bacon, eggs, toast and marmalade, and tea.”

Contrast these with a dinner described in a recent e-mail from John Pope, the author of a collection of obituaries that ran in the New Orleans Times-Picayune, who remains adamant in his rejection of the serial comma: “The next day, I enjoyed pan-roasted oysters with a tomato sauce over rice, broccoli salad and bread pudding with chocolate sauce.” A comma after “broccoli salad” would have cleared the table before dessert.
The case of the dairy-truck drivers’ comma has got several things going for it. It’s got David and Goliath in the story of the little guy sticking it to a corporate boss. It’s got men driving around in trucks with copies of Strunk & White in the glove compartment. And you know what else it’s got? Of course you do. It’s got milk. For all the backlash against the dairy industry—the ascendance of soy milk, almond milk, hemp milk (note the asyndeton), none of which, by the way, are really milk, because you can’t milk a hazelnut—there is something imperishably wholesome about cows and milk.

Got milk? Got commas?

 

Lack of Oxford Comma Could Cost Maine Company Millions in Overtime Dispute

(NY Times) — A class-action lawsuit about overtime pay for truck drivers hinged entirely on a debate that has bitterly divided friends, families and foes: The dreaded — or totally necessary — Oxford comma, perhaps the most polarizing of punctuation marks.

What ensued in the United States Court of Appeals for the First Circuit, and in a 29-page court decision handed down on Monday, was an exercise in high-stakes grammar pedantry that could cost a dairy company in Portland, Me., an estimated $10 million.

In 2014, three truck drivers sued Oakhurst Dairy, seeking more than four years’ worth of overtime pay that they had been denied. Maine law requires workers to be paid 1.5 times their normal rate for each hour worked after 40 hours, but it carves out some exemptions.

A quick punctuation lesson before we proceed: In a list of three or more items — like “beans, potatoes and rice” — some people would put a comma after potatoes, and some would leave it out. A lot of people feel very, very strongly about it.

The debate over commas is often a pretty inconsequential one, but it was anything but for the truck drivers. Note the lack of Oxford comma — also known as the serial comma — in the following state law, which says 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.

Does the law intend to exempt the distribution of the three categories that follow, or does it mean to exempt packing for the shipping or distribution of them?

Delivery drivers distribute perishable foods, but they don’t pack the boxes themselves. Whether the drivers were subject to a law that had denied them thousands of dollars a year depended entirely on how the sentence was read.

If there were a comma after “shipment,” it might have been clear that the law exempted the distribution of perishable foods. But the appeals court on Monday sided with the drivers, saying the absence of a comma produced enough uncertainty to rule in their favor. It reversed a lower court decision.

In other words: Oxford comma defenders won this round.

“That comma would have sunk our ship,” David G. Webbert, a lawyer who represented the drivers, said in an interview on Wednesday.

The language in the law followed guidelines in the Maine Legislative Drafting Manual, which specifically instructs lawmakers to not use the Oxford comma. Don’t write “trailers, semitrailers, and pole trailers,” it says — instead, write “trailers, semitrailers and pole trailers.”

The manual does clarify that caution should be taken if an item in the series is modified. Commas, it notes, “are the most misused and misunderstood punctuation marks in legal drafting and, perhaps, the English language.”

“Use them thoughtfully and sparingly,” it cautions.

Legal history is replete with cases in which a comma made all the difference, like a $1 million dispute between Canadian companies in 2006 or a very costly insertion of a comma in an 1872 tariff law.

Most American news organizations tend to leave the Oxford comma out while allowing for exceptions to avoid confusion, like in the sentence: “I’d like to thank my parents, Mother Teresa and the pope.”

Reporters, editors and producers at The New York Times usually omit the comma, but Phil Corbett, who oversees language issues for the newsroom, wrote in a 2015 blog post that exceptions are sometimes made:

“We do use the additional comma in cases where a sentence would be awkward or confusing without it: Choices for breakfast included oatmeal, muffins, and bacon and eggs.”

The Associated Press, considered the authority for most American newsrooms, also generally comes out against the Oxford comma.

But the comma is common in book and academic publishing. The Chicago Manual of Style uses it, as does Oxford University Press style. “The last comma can serve to resolve ambiguity,” it says.

A 2014 survey of 1,129 Americans by FiveThirtyEight and SurveyMonkey Audience found 57 percent in favor of the comma and 43 percent opposed.

Mr. Webbert, who said working on the case recalled his boyhood grammar and Latin lessons, scoffed at the idea that he was representing all those in favor of the Oxford comma. He was only representing the truck drivers, he said.

The drivers, who earned between $46,800 and $52,000 per year without overtime, worked an average of 12 extra hours a week, Mr. Webbert said. Though three drivers filed the class-action lawsuit in 2014, about 75 will share the money.

Oakhurst, a longtime family business that was acquired by Dairy Farmers of America in 2014, employs about 200 people and has annual sales of $110 million, selling dairy products throughout New England, according to its website.

Its president, John H. Bennett, said in an interview on Thursday that “our management team values our employees and we take employee compensation seriously.”

“We believe we’re in compliance with state and federal wage laws, and we’ll continue to defend ourselves in this matter,” he said.

Mr. Webbert declined to take a personal position on the broader debate of using the Oxford comma. But he sounded like a lot of English teachers and writing coaches who offered an alternative suggestion: If there’s any doubt, tear up what you wrote and start over.

“In this situation, it did create an ambiguity, which means you have to either add a comma or rewrite the sentence,” he said.

Lack of comma sense ignites debate after ruling in $10M suit

(Washington Post) — It all came down to a missing comma, and not just any one. And it’s reignited a longstanding debate over whether the punctuation is necessary.

A federal appeals court decided this week to keep alive a lawsuit by dairy drivers seeking more than $10 million in an overtime pay dispute.

It concerned Maine’s overtime law, which doesn’t apply to the “canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of” foods.

There’s no Oxford, or serial, comma in the “packing for shipment or distribution” part. The drivers said the words referred to the single activity of packing, which the drivers don’t do. The defendant, Oakhurst Dairy, said the words referenced two different activities and drivers fall within the exemption.

Circuit Judge David Barron wrote: “For want of a comma, we have this case.”

The court sided with the drivers.

“Comma sense ain’t so common,” Jeffrey Neil Young, an attorney for the drivers, said Friday.

David Webbert, another attorney for the drivers, said the “fight for overtime rights has been vindicated” by what he called a “landmark” ruling made possible by an ambiguous exemption and a lack of a punctuation mark.

“Our argument was that it was a train wreck of a sentence,” Webbert said. “The tie goes to the workers.”

Oakhurst representatives said they plan to keep fighting the suit and declined to comment on the comma kerfuffle. A trial could follow. The company is well known in Maine for its line of milks, creamers and other dairy products.

Since the ruling, the internet has become a battlefield for defense — and derision — of the comma. News website Vox tweeted that the “Oxford comma is the world’s most controversial punctuation mark.”

Indeed, use of the Oxford comma has divided people for years. FiveThirtyEight and SurveyMonkey Audience polled more than 1,000 people about it in 2014 and found that more than half favored the extra comma.

The Associated Press Stylebook advises against the use of the Oxford comma, except when it’s needed for clarity. In this case, someone following AP’s guidance would include a comma if the packing and distribution were intended to be separate activities.

Other authorities are more enthusiastic about the serial comma — notably Oxford University Press, from which the mark draws its popular name. The Oxford style guide, published as New Hart’s Rules, states that it is Oxford style “to retain or impose this last comma consistently.”

The Oxford Comma: Great For Listing, Pontificating, And Winning Court Cases

(NPR) — Surely, Oakhurst Dairy would have done well to heed the immortal words of the ’80s hair band Cinderella: “Don’t know what you got (till it’s gone).”

The milk and cream company based in Portland, Maine, likely never appreciated the serial comma — also known as an Oxford comma — so much as it did Monday, when the lack of that little curved stroke cost the company an appeals court ruling that centered on overtime rules for drivers.

Specifically, the ruling in favor of Oakhurst delivery drivers came down to Maine state law, which dictates that the following activities are not subject to overtime protections:

“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.”

The trouble rests with “or.” The presence of that tiny conjunction without a comma as a companion makes for some muddled meanings: Is “packing for shipment or distribution” exempt from overtime regulations? Or are both “packing for shipment” and “distribution” exempt?

These aren’t idle questions for the five delivery drivers who sued Oakhurst, because as Quartz notes, “the drivers do distribute, but do not pack, the perishable food.” In other words, one interpretation of the law’s list would make the drivers eligible for overtime pay; the other would mean they won’t get those extra dollars for extra time on the job.

“The District Court concluded that, despite the absent comma, the Maine legislature unambiguously intended for the last term in the exemption’s list of activities to identify an exempt activity in its own right. … But, we conclude that the exemption’s scope is actually not so clear in this regard.”

Even making allowances for the fact that Maine’s legislative style guidance eschews the Oxford comma, Barron argued that the ambiguity of the sentence “must be construed liberally” — and so adopted “the drivers’ narrower reading of the exemption.”

Case closed … for now, at least. With the district court ruling in favor of Oakhurst reversed, Quartz reports the case can now be heard in a lower court.

Now, as adherents of the great and terrible AP Stylebook — which also eschews the Oxford comma — we must admit the moral of this story flies in the face of everything (or one thing) NPR’s own sentences stand for.

But we offer the above fable as a reminder that every punctuation mark deserves a fair hearing, a glimpse into the glories of grammar(,) and a quiet rebellion against the tyranny of copy editors everywhere.*

*Just a joke, NPR copy desk! Please don’t break out the red pen.

Note from the copy chief: While NPR does generally follow the AP Stylebook, we on the copy desk take a more liberal approach in deciding when a series is complex enough to warrant the comma’s use.

Oxford comma helps drivers win dispute about overtime pay

(The Guardian) — Never let it be said that punctuation doesn’t matter.

In Maine, the much-disputed Oxford comma has helped a group of dairy drivers in a dispute with a company about overtime pay.

The Oxford comma is used before the words “and” or “or” in a list of three or more things. Also known as the serial comma, its aficionados say it clarifies sentences in which things are listed.

As Grammarly notes, the sentences “I love my parents, Lady Gaga and Humpty Dumpty” and “I love my parents, Lady Gaga, and Humpty Dumpty” are a little different. Without a comma, it looks like the parents in question are, in fact, Lady Gaga and Humpty Dumpty.

In a judgment that will delight Oxford comma enthusiasts everywhere, a US court of appeals sided with delivery drivers for Oakhurst Dairy because the lack of a comma made part of Maine’s overtime laws too ambiguous.

The state’s law says the following activities do not count for overtime pay:

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.

The drivers argued, due to a lack of a comma between “packing for shipment” and “or distribution”, the law refers to the single activity of “packing”, not to “packing” and “distribution” as two separate activities. As the drivers distribute – but do not pack – the goods, this would make them eligible for overtime pay.

Previously, a district court had ruled in the dairy company’s favour, who argued that the legislation “unambiguously” identified the two as separate activities exempt from overtime pay. But the appeals judge sided with the drivers.

Circuit judge David J. Barron wrote:

We conclude that the exemption’s scope is actually not so clear in this regard. And because, under Maine law, ambiguities in the state’s wage and hour laws must be construed liberally in order to accomplish their remedial purpose, we adopt the drivers’ narrower reading of the exemption.

The Oxford comma ignites considerable passion among its proponents and opponents. In 2011, when it was wrongly reported that the Oxford comma was being dropped by the University of Oxford style guide, there was uproar.

A missing comma keeps Oakhurst Dairy labor lawsuit alive

(Bangor Daily News) — A Maine labor dispute appeal decided on Monday hinged on perhaps the nerdiest, most contentious punctuation debate of all — the Oxford comma.

The U.S. First Circuit Court of Appeals ruled in favor of a group of Oakhurst Dairy truck drivers, who sued the company’s owners three years ago for unpaid overtime wages. The decision overturns an earlier U.S. District Court judgment in Oakhurst’s favor, keeping alive the dispute over $10 million in overtime wages for 75 Oakhurst drivers.

“For want of a comma, we have this case,” reads the opening line of First Circuit Judge David Barron’s 30-page decision.

The Oxford comma, also known as the serial comma, is used just before a conjunction, such as “and” or “or,” to separate the last item in a list of three or more things.

For example: “He bought milk, toast, and eggs.”

It has long served as fodder for heated debates on punctuation and grammar. Oxford comma advocates argue the punctuation mark provides clarity and avoids confusion. Detractors say the conjunction serves as enough of a delineation between items, and if the lack of a comma causes that much confusion, the sentence should just be written with more clarity.

Serial comma opponents would write the above sentence as “He bought milk, toast and eggs.” Proponents of the serial comma would argue that while that might not seem unclear, it would cause problems in a sentence like, “He brought his parents, Bill and Sue.”

Are his parents named Bill and Sue? Are Bill and Sue two entirely different people he brought along with his parents?

In the Oakhurst labor dispute, much of the focus is on a sentence in state law that describes how workers aren’t eligible for overtime pay if they’re involved 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.”

Note, there’s no serial comma between “shipment” and “or.”

The question this ruling hinged on: Is “packing for shipment or distribution” a single overtime-exempt activity, or are “packing for shipment” and “distribution” two distinct activities that are both exempt?

The drivers read the passage to say that people who take part in packing for either shipment or distribution are exempt. Distribution wasn’t its own category as written, and because drivers don’t do any packing for either of those purposes, the law doesn’t apply to them, the drivers argued. Also, if “distribution” was meant to be its own exempt activity, why isn’t it written as a gerund (word ending in “-ing”) like all the other activities in the list?

When the district court originally ruled in favor of Oakhurst, it argued the law was clearly intended to count distribution as a distinct, exempt activity, meaning the drivers had no legal right to overtime wages.

The appeals court’s decision disagrees, arguing that the passage is too ambiguous, so the state’s wage laws must be “construed liberally” by the courts, giving more credence to the drivers’ interpretation of the passage.

In effect, a federal court ruling was overturned because of a poorly written sentence and a missing comma. Still, there’s good reason the state left out that comma. The Maine Legislative Drafting Manual states that, when drafting a law, “don’t use a comma between the penultimate and last item in a series.”

The sentence could have been made more clear if items were rearranged as “storing, distribution or packing for shipment of […],” if that was the law’s intention, in order to avoid the forbidden Oxford comma.

With the appeals court’s decision to overturn, the case likely will see future court proceedings before the lawsuit is ultimately decided.

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
TOKEN COUNTER 

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

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