Sometimes, commas really do matter. They can clarify and prevent ambiguity. And sometimes the lack of them can lead to some humorous results, such as when The Times of London published an article on a Peter Ustinov documentary. A sentence in the story noted “highlights of his global tour include encounters with Nelson Mandela, an 800-year-old demigod and a dildo collector." While I think Mandela had reached a sort of demigod status by the end of his life, I don’t think he looked a day over 200. As for the dildo collecting, I hope he never traveled to Texas with 6 or more pieces in his collection given the Texas law on dildos the late Molly Ivins lampooned in the documentary “The Dildo Diaries”. Section 43.23 of the Texas Penal (not Penile) Code stated “A person commits an offense if, knowing its content and character, he... promotes or possesses with intent to promote any obscene material or obscene device... A person who possesses six or more obscene devices or identical or similar obscene articles is presumed to possess them with intent to promote the same.”
OK, that is all well and funny, but it was decidedly unfunny when a dairy company in Maine denied the overtime claims of drivers distributing milk. The company claimed they were exempt from having to do so under Maine law; however, the drivers disagreed on account of the rather ambiguous wording of the exemption in Maine law. Exemption F of Maine’s overtime law states the law doesn’t 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.
The drivers conceded that they do not “pack” the products they distribute, but that the lack of the comma between “packing for shipment” and “or distribution of” links the two together as a single activity and because they only engage in distribution, but not packing, the exemption from overtime pay does not apply. The dairy companies asserted the opposite, that the clause refers to two distinct and both exempt activities.
The drivers lost their initial suit in District court and appealed. The appeals court’s interpretation therefore hinged upon whether there is meaning to be found in the lack of an Oxford, or serial, comma in the string of activities listed. In the end it concluded the provision is ambiguous (ambiguity that wouldn’t exist with the comma) and that the court must necessarily rule in favor of overtime for the drivers given “the overtime law’s remedial purposes.” From the ruling
Oakhurst acknowledges that its reading would be beyond dispute if a comma preceded the word "distribution" and that no comma is there. But, Oakhurst contends, that comma is missing for good reason. Oakhurst points out that the Maine Legislative Drafting Manual expressly instructs that: "when drafting Maine law or rules, don't use a comma between the penultimate and the last item of a series." In fact, Oakhurst notes, Maine statutes invariably omit the serial comma from lists. And this practice reflects a drafting convention that is at least as old as the Maine wage and hour law, even if the drafting manual itself is of more recent vintage.
If no more could be gleaned from the text, we might be inclined to read Exemption F as Oakhurst does. But, the delivery drivers point out, there is more to consider. And while these other features of the text do not compel the drivers' reading, they do make the exemption's scope unclear, atleast as a matter of text alone.
The drivers contend, first, that the inclusion of both "shipment" and "distribution" to describe "packing" results in no redundancy. Those activities, the drivers argue, are each distinct. They contend that "shipment" refers to the outsourcing of the delivery of goods to a third-party carrier for transportation, while "distribution" refers to a seller's in-house transportation of products directly to recipients. And the drivers note that this distinction is, in one form or another, adhered to in dictionary definitions.
Consistent with the drivers' contention, Exemption F does use two different words ("shipment" and "distribution") when it is hard to see why, on Oakhurst's reading, the legislature did not simply use just one of them twice. After all, if "distribution" and "shipment" really do mean the same thing, as Oakhurst contends, then it is odd that the legislature chose to use one of them ("shipment") to describe the activity for which "packing" is done but the other ("distribution") to describe the activity itself.
The drivers' argument that the legislature did not view the words to be interchangeable draws additional support from another Maine statute. That statute clearly lists both "distribution" and "shipment" as if each represents a separate activity in its own right. And because Maine law elsewhere treats "shipment" and "distribution" as if they are separate activities in a list, we do not see why we must assume that the Maine legislature did not treat them that way here aswell.
After more discussion on the construction and purpose of the overtime law, the U.S. Court of Appeals for the 1st Circuit concluded ”If the drivers engage only in distribution and not in any of the stand-alone activities that Exemption F covers [...] the drivers fall outside of Exemption F's scope and thus within the protection of the Maine overtime law.”
Score one for labor on account of a missing Oxford comma.