First Circuit’s Decision in Overtime Lawsuit Hinges On Use of Oxford Comma

Lev Craig

On March 13, 2017, the U.S. Court of Appeals for the First Circuit reversed the district court’s granting of summary judgment in O’Connor v. Oakhurst Dairy, an unpaid overtime case brought by delivery drivers for Oakhurst Dairy (“Oakhurst”), a Maine local milk and cream company. The First Circuit found that the district court had incorrectly categorized the drivers as exempt from overtime under an ambiguous section of the Maine state wage-and-hour law—all, as First Circuit Judge David J. Barron wrote in the O’Connor opinion, “[f]or want of a comma.”

The O’Connor plaintiffs filed suit in the United States District Court for the District of Maine in May 2014, seeking unpaid overtime wages under the Fair Labor Standards Act (“FLSA”) and the overtime provisions of the Maine state wage-and-hour statute, 26 M.R.S.A. § 664(3). They alleged that Oakhurst had misclassified them as exempt under Exemption F of the Maine state overtime law, which states that employees engaged in “canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of […] [p]erishable foods” do not receive overtime protections.

The dispute turned on the phrase “packing for shipment or distribution,” and, specifically, the lack of a comma after the word “shipment.” The drivers argued that the phrase refers to one job duty: “the single activity of ‘packing,’ whether the ‘packing’ is for ‘shipment’ or for ‘distribution.’” Since the drivers handled perishable foods, but did not engage in packing them, they alleged that they had been improperly classified as exempt under Exemption F. Oakhurst counter-argued that the provision describes two distinct activities: (1) “packing for shipment,” and (2) “distribution.” Under this reading of Exemption F, the dairy delivery drivers could be properly classified as exempt, as they did engage in the distribution of perishable foods. Both parties moved for partial summary judgment, which the district court granted in favor of Oakhurst. Plaintiffs appealed, and the First Circuit reversed the district court’s decision.

To resolve the statutory ambiguity, the court began with a textual analysis, reviewing the linguistic and grammatical arguments made by each party. Oakhurst contended that the words “shipment” and “distribution” are synonymous, meaning that if the phrase “packing for shipment or distribution” would be redundant if it referred to one activity (as in the drivers’ reading), going against the legislative principle that every word in a statute must be necessary and independent. Oakhurst also cited the grammatical convention of “using a conjunction to mark off the last item on a list”: the lack of a conjunction before “packing,” and the inclusion of one before “distribution,” implied that “distribution” was the last item in a list.

The drivers argued that the statute is not redundant because “shipment” and “distribution” are not synonyms: “‘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.” The drivers pointed to another Maine statute which also uses the words “distribution” and “shipment,” but appears to draw a distinction between the two. The drivers also noted that all words naming an exempt activity in Exemption F were gerunds—such as “canning” and “processing”—yet “shipment” and “distribution” are not. Citing parallel usage conventions, the drivers argued that “shipment” and “distribution” thus must be read as “playing the same grammatical role—and one distinct from the role that the gerunds play.”

The court found that neither party’s reading of the text was fully satisfying or persuasive, and decided that a textual analysis alone would not be sufficient. Since there was “no comma in place to break the tie,” the court next turned to an analysis of the exemption’s purpose and legislative history, but found that to be inconclusive as well, since “[n]othing in the overtime law’s text or legislative history purports to define a clear purpose for the exemption.”

Ultimately, the court decided that “Exemption F is ambiguous, even after we take account of the relevant interpretive aids and the law’s purpose and legislative history.” Maine law thus required the court to construe the exemption in light of the remedial purpose of Maine’s overtime statute: “to provide overtime pay protection to employees.” Doing so, the court held, “clearly favors the drivers’ narrower reading of the exemption” and put the drivers within the protections of Maine’s overtime law.

If your employer has violated your rights under federal, state, or city wage-and-hour laws, contact The Harman Firm, LLP.