A class-action lawsuit about overtime pay for truck drivers has been reduced to a debate about proper grammar. At the core of the case is the Oxford comma – a controversial punctuation mark, which, when absent, can cost companies millions of dollars.
Oakhurst Dairy in Maine learned the hard way about the Oxford comma, which is defined as being “a comma used after the penultimate item in a list of three or more items, before “and” or “or.””
A small and nigh-imperceptible flaw in the wording of a union contract was all it took for clever lawyers to set up for a big cash-out.
The contract and its rules had stipulated that truckers wouldn’t be given overtime pay for “the canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of agriculture produce.”
Eagle-eyed observers might notice the problem “or” presents for readers. Even if the intent of the authors was clear – they don’t want to pay overtime for anything – the lack of the oft-lamented Oxford comma introduces an element of ambiguity. The question which arises naturally is whether truckers are entitled to compensation for the “distribution of agricultural produce” versus the separate job of “packing for shipment.”
If that sounds odd, parse the sentence, because the company rules change fundamentally when a comma is put introduced to the mix. When punctuation follows “shipment” and precedes “distribution,” the implication is that nobody is eligible for overtime pay, no matter if they’re marketing, freezing, drying, packing, or distributing. All of those actions would be grouped individually and could be taken alone.
However, omitting the comma gives the grammatically inclined leeway to argue for another definition of what might otherwise be regarded as a plain and straightforward piece of text.
The mistake the union and Oakhurst Dairy made is this: what they had intended to say was that they didn’t want to cough up cash for workers who were packing items for shipment or truckers who were distributing produce. Instead, they only pinpointed individuals who were packing “for shipment or distribution.”
In other words, it doesn’t appear that overtime pay can be denied to truckers working extra hours over the road or sitting around at receivers waiting to be offloaded. The only people legally allowed to be stiffed are the poor folks at shipping, who can’t exchange their hard work packing for either shipment or distribution for a fatter paycheck.
On Monday, the United States Court of Appeals for the First Circuit reversed a lower court’s decision, with the latter having sided with Oakhurst and the Union. The position of the First Circuit was that the missing comma made the sentence just vague enough to instill uncertainty about its definition. The intention of the authors who created the contract, after all, is no substitute for comprehensibility.
“The comma would have sunk our ship,” said David G. Webbert, who is one of the lawyers representing the truck drivers.
The Main Legislative Drafting Manual has cautioned legislators and lawyers to be careful when using commas. They are, according to the manual, “the most misused and misunderstood punctuation marks in legal drafting, and, perhaps, the English language.
“Use them thoughtfully and sparingly.”
Pertinent to the case is The New York Times’ quoting of the Oxford University Press style manual. “The last comma can serve to resolve ambiguity,” it says.
For readers who don’t know, the Oxford comma in particular has long been at the center of a heated and long-lasting exchange between its proponents and detractors.
David G. Webbert, the truckers’ lawyers, gave good advice for aspiring contract-writers and hardline grammarians.
“In this situation, it did create ambiguity, which means you either have to add a comma or rewrite the sentence.”
That ambiguity is shaping up to cost Oakhurst $10 million.