Who gives [an expletive] about an Oxford comma?" muses the band Vampire Weekend in a hit song. After a recent decision from the 1st Circuit (which covers Maine, Massachusetts, New Hampshire, and Rhode Island), I'm sure Oakhurst Dairy cares about the issue quite a bit.

A missing comma in a statute affected the court's interpretation of the law, and the decision could end up costing Oakhurst millions. Although the facts of the case were unusual enough to grab national headlines, the lawsuit fits into a growing national and local trend: an increase in the number of class action lawsuits filed under the Fair Labor Standards Act (FLSA).

Back to Grammar School

The Oxford comma, also known as the serial comma, has long been a source of debate among grammar nerds. It is used to separate the last two items in a series or list. For example, consider this statement: "I was stuck in an elevator with my parents, Bob and Linda." How many people were in the elevator?

The answer is not clear because the sentence is ambiguous. The speaker could mean himself and his parents Bob and Linda. Or the speaker could mean himself, his parents, and unrelated people named Bob and Linda. If the speaker meant to convey the latter meaning, he could have clarified the sentence by adding a comma between the last two items in the list: "I was stuck in an elevator with my parents, Bob, and Linda."

Comma Confusion

In Oakhurst Dairy's case, the dispute focused on an exemption from Maine's overtime law. Both the FLSA and Maine law require employers to pay workers overtime unless an exemption applies. You may be familiar with the executive, professional, and administrative exemptions, which are collectively known as the "white-collar" exemptions that apply to many salaried employees. However, there are additional exemptions that are quite specific and target certain industries.

Below is the overtime exemption under Maine law, word-for-word and punctuation-for-punctuation. Maine's overtime law does not apply to:

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. [Emphasis added.}

Do you see what's missing from the italicized portion of the statute? There is no Oxford comma! Thus, it is unclear whether the italicized language refers to one activity ("packing for shipment or distribution") or two activities ("packing for shipment" and "distribution"). The distinction is important because the plaintiffs in this case were milk delivery drivers who distributed milk but did not pack milk for distribution.

Ultimately, the court decided that the meaning of the statute was unclear. Because courts generally must interpret wage and hour statutes as providing broad protections for workers, the tie went to the delivery drivers. That means Oakhurst Dairy will be on the hook for a significant amount of unpaid overtime.

Class Actions Are Now in Session

Although this lawsuit turned on the specific punctuation in a specific provision in a specific statute, the case actually fits into a state and national trend. Nationally, the number of cases involving wage and hour issues under the FLSA has tripled since 2000. Employers now spend an estimated $1 billion per year on FLSA litigation. Claims for overtime pay are the most frequently filed cases, but claims related to off-the-clock work, missed meal breaks, and tip miscalculations are also common.

In my experience, wage and hour cases tend to follow a familiar pattern. The employer has been unwittingly violating the FLSA for years, perhaps because it has not trained its supervisors recently or supervisors have not been enforcing company policies. Eventually, an employee becomes disgruntled or is terminated and starts digging for potential claims against the employer.

The employee latches on to a law firm that specializes in class action lawsuits, and the firm contacts all of the employer's current and former employees. Suddenly, the employer has a major lawsuit on its hands. At best, the suit will be expensive and time-consuming to defeat. At worst, it could result in a hefty payday for the employees' attorneys.

You may think that large lawsuits target only large employers in New York or California, but this case and the Shaw's Supermarkets case we wrote about in our April newsletter show that such claims may be coming to a town near you soon.

Takeaway

This was a tough break for Oakhurst Dairy. The employer applied a reasonable interpretation to a statute that was arguably ambiguous. However, wage and hour claims can be prevented. Now is a good time to update your company's pay practices and train supervisors on their obligation to enforce your policies.

If a manager receives identical time cards week after week stating that an employee worked from precisely 9:00 a.m. to precisely 5:00 p.m. every day, she should view them with healthy skepticism. Also, remind managers that if they e-mail nonexempt employees during nights and weekends, they run the risk that employees will work off the clock in an effort to respond. I regularly review employers' policies and advise them on legal compliance, best practices, and, of course, comma placement.

Connor Beatty, an editor of Maine Employment Law Letter, can be reached at cbeatty@brannlaw.com or 207-786-3566.