Million Dollar FLSA Lawsuit Hinges on Punctuation


For want of a comma, dairy company pays out millions in FLSA overtime case

If you haven’t heard, commas save lives.

“Let’s eat, grandpa” versus “let’s eat grandpa.”

Get it? The first is an invitation for dinner. The second tells you what (or rather who) is on the menu. It’s the punctuation joke every grammar nerd loves to tell.

But as it turns out, commas don’t just prevent cannibalism (as if that weren’t enough). They also save companies from paying out millions in FLSA lawsuits.


The case for the Oxford comma

If you’re unfamiliar with the Oxford comma (also known as the serial comma, the best comma), it comes before the conjunction at the end of a list, separating the last two items. As any Oxford comma fan will tell you, it’s a big deal because it keeps you from confusing basic relationships like this:

  • I adore my parents, Bruce Springsteen, and Katy Perry.
  • I adore my parents, Bruce Springsteen and Katy Perry.

Or making up disgusting culinary combinations like this:

  • My favorite bagels are parmesan, everything, onion, and blueberry.
  • My favorite bagels are parmesan, everything, onion and blueberry.

Here at TSheets, we’re all about saving lives as well as timesheets, so we love the Oxford comma. But there are plenty of companies and government organizations that don’t use it, and crazy enough, for Oakhurst Dairy in Portland, Maine, this tiny punctuation mark has recently caused some major complications.


The comma conundrum

Maine law states salaried workers will receive overtime unless otherwise exempt. These exemptions include “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.)

Basically, if you are a salaried employee and your job is to preserve milk, you clearly are not eligible for overtime. But say your job isn’t to preserve milk.

Instead, you’re a salaried worker who delivers milk. As someone who delivers the milk but doesn’t pack it (i.e., you don’t pack it for shipment or distribution, you just distribute it), do you qualify for overtime? Oakhurst Dairy’s truck drivers said yes.

The case went before a district court in 2014, where the court sided with Oakhurst Dairy, ruling that “distribution” was a standalone activity. The drivers appealed the decision, sending the case to the First Circuit court in March 2017, where Circuit Judge Barron made this statement:

“For want of a comma, we have this case. … We conclude that the exemption’s scope is actually not so clear … 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.”

Essentially, the court found the lack of an Oxford comma left the law open for interpretation, and the judge was compelled by state law to side with the drivers, who were thrilled to get their previously unpaid overtime.


The $10 million grammatical error

So how much does a missing comma cost? In the case of O’Connor v. Oakhurst Dairy, the answer is estimated around $10 million. It’s not unusual for an FLSA lawsuit to cost employers millions of dollars (just check out this list from 2016), but it’s fairly rare for an overtime lawsuit to be hinged entirely on a single punctuation mark.

See the list!

Still, that likely wasn’t much consolation to Oakhurst Dairy earlier this year when the ruling hit, particularly when they have the Maine Legislative Drafting Manual to blame. The manual, which specifically instructs lawmakers to not use the Oxford comma, states commas should be used “thoughtfully and sparingly,” as they are “probably the most misused and misunderstood punctuation marks in legal drafting and, perhaps, the English language.”

Perhaps it was intentional to leave off the comma, or maybe legislators just weren’t in the mood to argue punctuation at the time. Either way, companies and governments alike should take note of this unusual case and not only cross their t’s and dot their i’s when drafting overtime rules, but make use of the Oxford comma as well.