So You Think You Can Speak English?

A case that is both a Drama and a Comma-dy

O’Connor v. Oakhurst Dairy
Reversed and remanded – Oakhurst allegedly failed to pay delivery drivers overtime pay (time-and-one-half of hourly wages for work over 40 hours in one week). As delivery drivers, plaintiffs’ primary job duties consisted of (i) picking up loaded trucks, (ii) driving the trucks to retail customer locations, (iii) unloading trucks, (iv) taking replenishment orders, and (v) driving empty trucks back to Oakhurst. Oakhurst argued plaintiffs were exempt from overtime as overtime provisions of Maine’s Minimum Wage and Overtime Law did not apply to “distribution.”

26 M.R.S.A. §§664(3)(F): “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.”
(emphasis added)

The district court agreed, and found since the drivers’ job duties included “distribution,” they were exempt from overtime.

The appellate court rejected Oakhurst’s contention that “packing for shipment or distribution” were two district exempt activities. It felt that if ‘shipment’ and ‘distribution’ were synonyms, as Oakhurst contended, it was “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.” Additionally, other Maine laws referred to ‘shipment’ and ‘distribution’ as separate activities (e.g., M.R.S.A. § 1476 referred to “manufacture, distribution or shipment” as separate items.) Moreover, Oakhurst’s own org charts seemed to treat the two as separate activities.

Additionally, the statute listed the preceding activities using gerund forms of verbs as subjects (canning, processing, preserving, …), while ‘shipment’ and ‘distribution’ were objects of the preposition ‘for’. Viewed in light of the Maine Legislative Drafting Manual, absence of a comma was then not dogmatic adherence to convention, but an unfortunate introduction of ambiguity the manual sought to prevent.

Finally, the appellate court found that while ‘packing’ was time sensitive (eligible for exemption), ‘delivery’ was often a lengthy process. “No matter what delivery drivers are paid for the journey, the trip cannot be made to be shorter than it is.”

Given that the default rule of construction under Maine law was to construe ambiguous provisions in favor of the beneficiary (person for whom the statute was drafted to protect), the appellate court adopted plaintiffs’ narrower construction of the exemption, reversed the district court’s summary judgement, and remanded to evaluate plaintiffs’ contention they neither ‘packed perishables for shipment’ nor ‘packed perishables for distribution.’
[1st Circ.; No. 16-1901 (Orig: D. ME; 2:14-cv-00192)]
jbho: like I’ve always said, the last comma determines the type and number of items in a list. Although I’ve been reviled for my insistence on use of the ‘oxford comma,’ I’ve seen big money at stake in contract disputes due to ambiguity created by the lack of clear punctuation. So when in doubt, comma it out.

In addition to the above, I also noticed that using the principle of the last antecedent, it would be logical to assume that the statute does address ‘packing for shipment’ and ‘packing for distribution’ as two separate activities. The magistrate’s opinion did address this, and felt there was no material difference between the two, but that fact was not mentioned in the appellate court’s decision. Looks like that will be the focus on remand.

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