August 2, 2017

Best Practices: To Use or Not to Use- That is the Ten Million Dollar Question

by Katherine D. Tohanczyn

It turns out that your English teacher may have been right, after all: a misplaced comma can be a big deal. A Maine dairy company was reminded of the importance of grammar in a recent court decision, that could cost the dairy company an estimated $10 million.

In 2014, three truck drivers sued Oakhurst Dairy for more than four years’ worth of unpaid overtime. Maine law requires workers to be paid 1.5 times their normal rate for each hour worked after 40 hours with certain exemptions. Specifically, the statute states that the overtime rule does not apply to workers involved in “[t]he 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 Court was asked to determine whether the language “packing for shipment or distribution,” described one job or two. Stated differently, does the law apply to workers engaged in the distribution of the three numbered categories that follow, or does it mean to exempt packing for the shipping or distribution of those categories?

The drivers argued that workers who take part in packing for either shipment or distribution are exempt from the overtime law. Assuming that this interpretation is correct, because distribution is not its own category as written, and because drivers do not do any packing for any of the listed purposes, the exemption would not apply to the drivers and they would be entitled to their overtime pay.

The answer to this question hinged on the lack of a serial or Oxford comma. A Oxford comma is an optional comma that goes before the “or” or “and” in a series of three of more terms. Opinions among writers and editors differ on whether the Oxford comma should be used to avoid misunderstandings.

In the Oakhurst Dairy case, the First Circuit Court of Appeals agreed with the drivers, explaining that the law as written was ambiguous and therefore, must be “construed liberally” by the courts, thereby giving more credence to the drivers’ interpretation of the law. This ruling implies that, in Maine, an Oxford comma is required to separate words or word groups in a simple series of three or more items.

This case demonstrates the potential risks associated with ambiguity in commercial loan documents. Careful drafting and attention to detail can go a long way to prevent losses and avoid unnecessary litigation.

For more information about this, please contact Katherine at or at 267-470-1187.