Serial Commas May Not Seem Like a Big Deal – Until You Omit One

May 25, 2017

Commas are often overlooked, but they are a necessary, and often important, punctuation mark. For example, if I said that my heroes are my parents, Ronald Reagan and Margaret Thatcher, you might think that my parents are Ronald Reagan and Margaret Thatcher, which would be quite a surprising revelation, not to mention great tabloid fodder. Instead, I clearly meant to say that my heroes are my parents, Ronald Reagan, and Margaret Thatcher. A recent 1st Circuit case highlights that a comma, properly used, can make all the difference. The takeaway is that the serial comma is your friend and can prevent unnecessary, and costly, misinterpretations down the road.

‘Missing’ comma leads to federal lawsuit

Recently, the 1st Circuit, which is based in Boston, issued a decision that focused on a seemingly mundane topic: the serial comma. Also known as the Oxford comma, the serial comma is “a comma used to separate the second-to-last item in a list from a final item introduced by the conjunction and or or.” The purpose of the serial comma is to make clear what is, and isn’t, included in the list.

Serial comma use isn’t something that most people spend much time thinking about, but it’s often debated by academics, journalists, and lawyers. It’s also quite handy for making jokes on the Internet—just Google “Oxford comma memes.” Indeed, it may seem like worrying about a comma is a waste of time, but it can have serious consequences when you’re trying to spell out job duties or responsibilities for employees.

For example, in the 1st Circuit case, the court was considering an appeal by dairy delivery drivers who brought a lawsuit claiming they were entitled to overtime pay under Maine law. The statute in question provides that 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” are exempt from Maine’s overtime law. The employers claimed the drivers were exempt because they were engaged in the “distribution” of dairy products, and the district court agreed.

On appeal, the question for the 1st Circuit was fairly straightforward: Were the drivers included in the list of exempt employees because they were involved in “distribution” of certain food products?

Consistency is key

At first blush, the employers seemed to have the better argument, and the court of appeals agreed, if there had been a serial comma before the word “or.” Instead, because the comma wasn’t included, the court couldn’t say for certain. When the court looked more closely at the list, it was unclear if “distribution” is meant to be a stand-alone activity, or if, like “shipment,” “distribution” is a description of the type of “packing” that’s included in the list. In other words, it was unclear whether the exemption applies to packing for purposes of shipment or distribution, or if there are separate exemptions for “packing for shipment” and “distribution.”

But it wasn’t just the lack of a serial comma that led to the court’s conclusion. In a discussion that will probably cause flashbacks to middle-school or high-school English class for most readers, the court explained that “shipment” and “distribution” are different from the other exempt activities in the statute. If you look back at the list, you will notice the first eight activities—canning, processing, preserving, freezing, drying, marketing, storing, packing—are gerunds, or “verbal nouns” ending in “-ing.” The words “shipment” and “distribution” are not. That matters because of what’s known as the “parallel usage convention,” which states that elements of a series must be a “functional match” to the others and serve the same purpose.

In this case, had the last word in the exempt activities list been “distributing,” then the employers may have had a stronger argument. Unfortunately for them, the Maine Legislature hadn’t spent as much time with The Chicago Manual of Style as the 1st Circuit, and the resulting confusion in the overtime law leaves the door open for the drivers’ legal challenge. All of that may seem like a distinction without a difference, but the various canons of interpretation used by the court in this case helped it make sense of statutory language, which is often anything but consistent.

The end result of the court’s grammar lesson, along with a presumption that the overtime law should be liberally construed in favor of employees, is that the court sided with the drivers’ interpretation and limited the scope of the exemption to “packing for shipment or distribution.” That means the drivers are potentially eligible for overtime protection, which could be very expensive for the employers. All because of a missing comma.

What does a Maine overtime law have to do with Wisconsin employment law?

So, aside from providing a “fun” lesson about grammar and the importance of the serial comma, you may be wondering what a 1st Circuit decision about a Maine overtime law could possibly mean for you and other Wisconsin employers. Well, the main goal of this article is to illustrate the importance of clarity and consistency in written employment policies and procedures. If you have an employee handbook or similar written policies and guidelines, then you need to make sure they clearly spell out both your organization’s and your employees’ duties to avoid confusion.

This may seem like a debate that “only a lawyer could love,” but we hope it makes some sense when you think about the types of duties and responsibilities that companies might include in their handbooks and manuals. The exemptions from the Maine overtime law could just as easily be a list of job responsibilities for warehouse employees. For example, suppose you have employees who are responsible for storing, packing for shipment and distribution of cheese curds. Are the employees expected to simply store and pack the curds, or are they going to distribute them as well, to ensure they arrive squeaky fresh? The point is, you should try to be clear, consistent, and concise when you write your policies and procedures to avoid unnecessary confusion, or litigation, in the future. O’Connor v. Oakhurst Dairy, No. 16-1901 (1st Cir., Mar. 13, 2017).

Bottom line

The bottom line is that attention to detail and consistent grammar usage will help you in the long run. Take a look at your employee handbook and your policies to make sure you’re using consistent language throughout. And remember, as the “Let’s eat grandma” T-shirt wittily warns, commas save lives.

This article, slightly modified to note recent updates, was featured in the May 2017 issue of the Wisconsin Employment Law Letter, which is co-edited by Axley Brynelson Attorneys Saul Glazer and Michael Modl and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.