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.”

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

Race Discrimination and Retaliation Lawsuit

Read the full article at the Bangor Daily News here

WARREN, Maine — A former nurse at the Maine State Prison has filed a federal lawsuit against the private company that provides health care to Maine corrections facilities, claiming she was subjected to frequent racial taunts and that her employer retaliated by firing her when she complained.

Attorney David Webbert of Augusta filed the civil rights lawsuit Tuesday in U.S. District Court in Portland on behalf of Shana E. Cannell, who worked as a licensed practical nurse at the prison from February through October 2010. The lawsuit names Corizon LLC and three of its employees — Brian Castonguay, Larry Brayhall and Tammy Hatch.

Webbert said that the prison was aware of the actions of Corizon although the state is not named in the lawsuit. The lawsuit states that some prison staffers also made derogatory comments toward Cannell, who is black.

Cannell, who now lives in St. Louis, Missouri, claims in the lawsuit that she was subjected to racial slurs. She said when she complained to her supervisors she was given less favorable assignments and ultimately fired.

In her lawsuit, Cannell lists the derogatory comments made by co-workers. In addition to the slurs, she said that other employees would say that “cleaning up messes is what your people do,” “of course your people like chocolate, a chocolate for a chocolate,” and “I can be the fried chicken and you can be the watermelon.” One of the people accused of making the comments was fellow nurse Brayhall.

The woman said she went both to Castonguay, who was the director of nursing, and Hatch, who was the administrator.

“Defendants orchestrated and condoned a continuing campaign of harassment against Cannell because of her race and in retaliation for her opposition to the unlawful race discrimination and harassment in the workplace,” the lawsuit states.

Cannell claims in the lawsuit that after she made her complaints there was an incident in which she was not protected when an inmate made serious and repeated threats against her personal safety, and that her car was ransacked while she was at work.

Jeff Young elected a Fellow in the College of Labor and Employment Lawyers

Jeff Young has been elected a Fellow in the College of Labor and Employment Lawyers.  Fellows are selected based on their long and outstanding service, which distinguishes them as leaders in the field.  David Webbert is also a fellow in the College.  Johnson, Webbert & Young is the only firm in Maine dedicated to representing employees to have any Fellows in the College.

Hot Tip: Restaurant Servers Get Left Out of the Minimum Wage Debate

Read it here.

Summer weather is (finally!) arriving in Maine, and with it, thoughts of summer vacation. Whether you’re planning a road trip up the Maine coast, or sightseeing in Europe, there’s one activity that almost always accompanies summer travel: dining in restaurants. And with dining out comes the age-old question. How much do you tip?

I come from a family with strong beliefs about tipping. Twenty percent is the bare minimum. The tip should be calculated on the total bill, including tax and excluding discounts. And weird-tasting food, a long wait, or getting something a little different than what you ordered are no reason to skimp on the tip. Though it was a family joke that my dad sometimes left a tip higher than the bill, I generally agreed with this tipping philosophy. That abstract belief became much more real when, during college, I started waitressing at a local diner outside Philadelphia

I earned $2.83/hour before tips. That’s about a third of the federal minimum wage. And yet, this pay scheme is perfectly legal. Under both federal and Maine law, servers and other tipped workers are generally exempt from minimum wage requirements. Only seven states nationwide require that tipped workers earn the regular minimum wage. Most states, as well as federal law, simply require restaurants to pay a special “tipped worker” minimum wage of as low as $2.13/hour. Maine sets the standard slightly higher, setting the tipped worker minimum at $3.75/hour.

The tipped worker exemption is rooted in the assumption that servers can more than make up for their low wages in tips. In essence, it’s a way to shift the burden of paying fair wages from the restaurant owner to the customer. It’s no surprise that the National Restaurant Association fights hard against any attempt to set a fair minimum wage for servers. The Association spent more than $2 million last year lobbying against a federal bill that would have gradually raised the minimum wage for tipped workers to 70% of the regular minimum wage.

Of course, some server jobs, particularly at busy, upscale restaurants, make good money. But tips, unlike a fair minimum wage, are unreliable. I remember all too clearly days when I worked a slow seven or eight hour breakfast/lunch shift, only to come home with $15 or $20 in tips. One regular customer I will never forget came in every weekday morning, ordered a coffee and a piece of toast totaling exactly $2.30, and left me a forty cent tip. It’s hard to blame him – after all, at least he splurged for a little over 15% — but it’s also hard to live on.

There’s one important legal protection that tipped workers themselves are often unaware of: if wages plus tips do not average at least the regular minimum wage, then the employer is supposed to make up the difference. Although this provides an important safety net, it’s all too often ignored. Many servers are unaware of it (I know I was when I was waiting tables), and even if they are, they may not have reliable records of their tips and may fear they’ll risk their job by pushing the employer to pay them additional wages.

For millions of Americans, the exemption for tipped workers is more than insulting or frustrating – it can mean being unable to pay for rent, gas, and food for their family. Tipped workers are more than two times as likely to fall below the federal poverty line and three times as likely to be on food stamps, and a full 16% of waiters live in poverty. And even if the regular minimum wage is raised to $10 or more, as many policymakers have been pushing for recently, this vulnerable group will only be left further behind. So next time you’re enjoying a meal out and get that bill, think about what your tip means.

Personality: Does it really matter on the job?

Read it here

Do you remember the old song “Personality?” penned by the R&B singer Lloyd Price, it’s the one with the unforgettable lyrics:

’cause you got personality
Walk, personality
Talk, personality
Smile, personality
Charm, personality
Love, personality
And of Cause you’ve got
A great big heart
So over and over
Oh, I’ll be a fool to you

It was so big, it even was covered by singers as disparate as Jerry Lee Lewis (Goodness Gracious Great Balls of Fire) and Frank Sinatra.

I thought of “Personality” recently when my teenage daughter returned home from her freshman year at Muhlenberg College. Like many other kids her age, she’s been busy looking for a summer job. She applied to a lot of places in Freeport, the Maine Mall, the Old Port, and places in between. Retail, waitress, office help—she is willing to do just about anything to make some spending money.

My daughter filled out a lot of applications, had some interviews. Something finally turned up. But what really blew me away was when one prospective employer required her to take a 110-question personality test. Really? For a part-time summer job probably paying minimum wage?

But apparently personality testing of job applicants is quite the rage. According to the Society for Human Resource Management, as of late 2011, 18% of all employers required employees or job applicants to take some kind of personality test, including 43% for entry-level positions.

Can personality testing really disclose whether an employee is going to be a good fit? Hard to say. At least one recent study at the University of Toronto suggests that employers would be better off asking someone who knows the job applicant—even a close friend—to assess the job seeker’s personality rather than rely on a self-assessment.

But even more disturbing—and one thing that I wasn’t really aware of—is that these tests can be a means to screen out disabled workers in violation of the Americans with Disabilities Act (ADA). You see, the ADA places strict limitations on employers who wish to conduct medical examinations. For example, the Minnesota Multiphasic Personality Inventory (MMPI), a test commonly used by many employers, contains scales to measure traits such as depression and paranoia. While the MMPI is not a true personality test, it is being used (wrongly) for that purpose.

So when an employer that only wants to hire smiley-face employees uses the MMPI or personality tests to exclude folks with depression, guess what? That may be disability discrimination.

Excluding large numbers of otherwise qualified applicants from work not only may be discriminatory, but it probably is also a poor business practice in what truly has become Prozac Nation.   According to an article last year in the New York Times, 10% of all Americans now take antidepressant medication, including 25% of women in their 40’s and 50’s. As the Court of Appeals humorously questioned in the MMPI case, “Can [an employer] really fill its management positions if it won’t promote disgruntled Cubs fans?” (Good thing like me they are not long-suffering Cleveland sports fans).

No one can blame an employer for wanting to hire reliable, courteous, good-natured employees. But can a personality test really determine who fits the bill? Isn’t the past prologue? Wouldn’t employers be better off making such judgments on the basis of a job interview and references, not a written personality test?

If the tests do work, then as for me, it’s a good thing I didn’t have to take such a test to get my first job—sorting returnable soda bottles. Maybe the test would have uncovered my own anger management issues. When I finished that extremely boring summer on the job, I smashed 100 bottles to celebrate!

Attention Grads: Working could be dangerous to your health!

Read it here.

It’s June at last. Winter is finally in the rear view mirror (the snow didn’t clear out of my yard until April 22).  Memorial Day already has come and gone. The forsythia has bloomed. I’ve fired up the barbecue a few times in between the raindrops. Caught a few Sea Dogs games. Even managed to play a few rounds of golf.

But for me, this time of year is always associated with one thing. Graduation. One of my daughters is graduating from high school. You probably have a graduate somewhere in your family, too. There are ceremonies to attend, speakers who will drone on, and the future to think about.

Which is why I think the movie “The Graduate” is so memorable, even some 40 years after its release. It’s the one where Dustin Hoffman has just graduated from college, doesn’t know what to do with his life, and needs to find a job. The one where Mr. Robinson whispers to Benjamin at his graduation party, “I’ve got one word for you. ‘Plastics.’”

You don’t know me, so I didn’t get to attend your graduation party. But if I had, and you were about to join the workforce, I wouldn’t be whispering “Plastics” in your ear. That’s so 60’s. Rather, after offering my congratulations and wishing you good luck, the words I would whisper to you would be “at will.”

Why “at will?” Because if you are entering the workforce, taking on your first real job, then “at will” are two important words you need to know. If your employer provided you with an employee handbook, and gave you the time to read it, and you actually did so (right!), those two words “at will” are probably somewhere in there. Often even on the first page, in the introduction.

So what the “h” “e” ”double toothpicks” is “at will?” (I try not to swear in my blog).  “At will” is a small phrase, but those six letters pack a lot of punch on the job.  “At will” means that in most cases your employer can fire you for just about any reason. For good reason, bad reason, or no reason at all.

You see, contrary to what you would think, here in Maine—in fact, in most places across this county except Montana (Montana???)—you don’t have any real rights on the job. Zero. None. Zippo.

Unless you are covered by a union contract (only about 11% of the overall workforce these days; excluding public employees, just under 7% are covered), or have a contract of employment (generally reserved for big shot executives and doctors, not recent graduates), you are an “at will” employee. Unless you can prove that you were fired for some protected characteristic or conduct—race, age, sex, religion, national orientation, disability, sexual orientation, or whistleblower activity—an employer can discharge, discipline, or lay you off whenever it wants.

Hopefully that won’t happen to you. But unlike in my parents’ generation, most of us are destined to change jobs ten to fifteen times over the course of our career. In fact, I just left my job after 26 years.

Blame it on the global economy. Blame it on the unions. Blame it on the lack of unions. Blame it on the stock market.   But the reality is, there’s no such thing as job security any more, whether you’re a blue collar worker in a Maine town going to work at the local paper mill, a shipbuilder, a health care provider, or a white collar employee at one of the large banks or insurance companies in town.

Which means that if and when your job does come to an end, or you get a new s-o-b boss (like I said, I don’t swear in my blog) who brings you to tears, you may be picking up the phone to give me a call. And if and when you do, I will try to help you. But I won’t sweet talk you. And if I can’t help you, that’s probably when I’ll whisper those not so sweet words, “at will.”

Today marks the start of my new blog on the Portland Press Herald website “On the Job: Your Maine Rights at Work.” Together with my friend and colleague Carol Garvan and on occasion other attorneys at Johnson, Webbert & Young, we’ll post twice a week on topics related to work here in Maine and developments on the job around the US and elsewhere that could be headed this way in the future. We’ll remember important events that, even though not always work-related, have changed today’s workplace. We’ll present a perspective that isn’t always found in the business section—or any other section—of the newspaper; the view of the working man and woman.

We invite you to comment, to have a dialogue with us, to tell us why you agree or disagree. We look forward to hearing from you. And hopefully we will never need to tell you that you are “at will.”