A recent federal court decision pivots on a missing comma, and rarely has the lack of such a small amount of ink been so costly for a defendant. In O’Connor v. Oakhurst Dairy, the First Circuit Court of Appeals was called upon to interpret a Maine labor law. The court found that due to poor punctuation, the statute’s meaning was unclear, triggering the application of a rule that laws be interpreted broadly to further their objectives, and thereby ensuring a defeat for the northeastern dairy company.

The type of comma under question is known as an Oxford comma or a serial comma, and it is considered optional in legal writing. In a series of words or phrases, the Oxford comma makes explicit that the word or phrase before a sentence’s final conjunction is a distinct element from the element following that conjunction, as in the comma after “white” in “red, white, and blue.” While it is undisputed that each element in a list should be separated by a comma, it is a hotly debated matter of style whether the second-to-last item needs to be followed by one.  The anonymous author of the Maine statute in question decided to exclude the punctuation mark, leading to this litigation.

Oakhurst Dairy claimed it did not need to pay overtime to its delivery drivers, because under state law, an exemption exists for

The dairy argued that the Maine legislature intended the last item of the above list, “distribution,” to be an exempt activity and that therefore the drivers were not entitled to overtime pay. The drivers’ convincingly countered that “packing for shipment or distribution” is instead a single activity of “packing”, either packing for shipment or packing for distribution, and that therefore overtime pay was required.  The court exhaustively and entertainingly parsed the sentence in its detailed decision as it weighed both interpretations – rarely has the term “asyndeton” appeared in an appellate ruling – and obviously a comma between “shipment” and “distribution” would have rendered any judicial finding unnecessary.  But, as the comma was not in fact present, it is unclear if it went missing to denote two distinct types of packing, or merely as a matter of drafting style. Because of this ambiguity in the statute, the court found in favor of the drivers, generating damages that could cost the company millions of dollars, on the default principle that in Maine, when doubt exists, “laws must be liberally construed to accomplish their remedial purpose.”

Although this case became known for evoking readers’ memories of their middle-school English teachers’ admonishments, there is a deeper principle for business owners: when given the opportunity, courts tend to construe labor laws and overtime rules liberally in favor of employees. Therefore, businesses should be ever vigilant when drafting rules and documents concerning employees, whether union contracts or workplace manuals, and should interpret legislation with practical employee effects in mind. As this case illustrates, seemingly minor drafting choices can lead to major consequences.