I bloody love stories like this, mainly because I’m one of those writers who tries to keep commas down to the bare minimum. Here’s an example of how a missing comma can end up costing you a couple of million dollars.
Before we start, let’s take a look at one of the more common uses of the comma: making lists.
On his travels, Doctor Francis Upworthy met a penitent drug dealer, a man who swallowed knives, his future wife Judith, a kick-boxing dwarf, and a pole-dancer.
The good doctor gets around, and he meets a lot of interesting people. But here’s the problem; the last comma in that list is often called the Oxford Comma, and just as often, is cited as being superfluous. In this instance, the and conjunction acts as the list comma, so adding another one before the last item in the list makes little sense. I’m not going to get into who is right and who is wrong about this; it’s an argument that’s way older than me. The point is that detractors of the Oxford Comma will take that sentence and put a big red line through that last comma, and they’ll probably add a little literary venom to show just how wrong you are for using it.
But what happens if I remove the comma?
On his travels, Doctor Francis Upworthy met a penitent drug dealer, a man who swallowed knives, his future wife Judith, a kick-boxing dwarf and a pole-dancer.
Well, on the surface, nothing at all. But if you look closely, we have a something of an ambiguity. Someone unfamiliar with the good doctor might read that and think he only met three people: the drug dealer, the knife swallower, and his wife Judith – who happens to be a kick-boxing, pole-dancing dwarf (and there’s absolutely nothing wrong with that, he added quickly). Now there are a few reasons why no one is going to read that sentence and assume that Judith is a lot more interesting than she actually is:
- Context. Perhaps by knowing a little bit about the doctor and his travels, we will assume that he would have met the dwarf and the pole dancer.
- Readability. The second example seems to be an incomplete sentence, if you read it Judith as having extra curricular activities.
- Common sense. Your brain will pretty much skip over the punctuation and just read it in the way that makes the most sense.
But when we’re dealing with the law, what is actually written down will always take precedence over context and common sense, which leads me to today’s story: set in Maine, and concerning a group of drivers and an overtime dispute.
For many years Oakhurst Dairy has paid compulsory overtime to their drivers in accordance with state law. However, the law does allow for payment exemptions when it comes to dealing with perishable foods (which is just about everything dairy). I assume this is to ensure that companies don’t incur additional costs when dealing with stuff that will go off quickly if it’s not processed and delivered in a timely fashion. So, under the bylaw, the following processes are exempt from overtime pay:
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.
All good so far, or at least it was until Oakhurst Dairy’s drivers took the company to court, claiming that, as drivers, the exemption didn’t apply to them.
The argument went something like this:
Drivers: “You owe us four years overtime.”
Oakhurst: “Er … no, we don’t.”
Drivers: “Yes, you do. We’re drivers, and there’s nothing in that bylaw that says we’re exempt from overtime pay.”
Oakhurst: “Yes, you are. Look, it says right here: canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution… You’re drivers. You distribute. You’re exempt.”
Drivers: “Read it again. It says that folk who are involved in packing for shipment or distribution are exempt from overtime. We’re drivers. We distribute, but we do not pack for shipment or distribution. You’re missing a comma before or distribution.”
Oakhurst Dairy: “Oh … shit.”
Drivers: “That’s $10million in overtime back payments. Pay up, Management Dude.”
Oakhurst Dairy: “Like hell we will. See you in court, guys.”
And so it went to court. The drivers lost the first round, but won on appeal. The judges said:
We conclude that the exemption’s scope is actually not so clear in this regard. And because, under Maine law, ambiguities in the state’s wage and hour laws must be construed liberally in order to accomplish their remedial purpose, we adopt the drivers’ narrower reading of the exemption.
My own take on this? Well, it seems strange to me that the original lawmakers would allow for everything to make sure that perishable stuff was processed without overtime, but then stop short at actually delivering it. And if they really meant to exclude distribution, then wouldn’t they have written something closer to this?
The canning, processing, preserving, freezing, drying, marketing, storing or packing for shipment or distribution of:
(1) Agricultural produce;
(2) Meat and fish products; and
(3) Perishable foods.
Still, this is this law we’re talking about here. It’s not about what they meant, it’s about what they said. Of course, with this amount of money at stake, it isn’t over yet. Oakhurst Dairy is heading back to court. The company argues that guidelines for drawing up Maine bylaws recommend that the Oxford Comma is avoided.
Good luck with that.
For me, my view regarding the Oxford Comma stays the same: you don’t need it, until you actually need it. :-/