The $5 Million Comma

Punctuation is important — any grammar school Language Arts or English teacher will certainly insist on that. And I guess that statement is mostly true, but to a point; it’s rather unlikely that my double-dash in the previous sentence is the correct way to punctuate that sentence, but I did it anyway, and my guess is that you didn’t seem to mind. So, perhaps, punctuation is important, but it is also flexible.

Except when writing laws. In that case, a comma — or lack thereof — can cause a lot of problems.

Just ask Oakhurst Dairy, a Portland, Maine-based dairy company that makes milk and other similar products. And like any other company of that type, it doesn’t make sense for the milk they make to just sit on their factory floors; Oakhurst Dairy has to ship all of that stuff to stores around the country. That requires truck drivers, and truck drivers need to be paid. Nothing controversial about that. At least, not until 2014.

That year, a group of truck drivers realized they hadn’t been paid overtime. Maine’s employment laws at the time were similar to those of most other states, and some hourly workers were entitled to “time-and-a-half” for all hours worked after 40 in any given week. In other words, if an employee making $10 an hour worked 42 hours, he’d get paid $400 for the first 10 hours; then, he’d get paid three hours’ worth of salary for the additional two hours worked, or $30. But like other states’ laws, Maine’s had many exceptions. Not everyone was entitled to time-and-a-half, and truck drivers transporting milk were probably intended to be one of those exceptions. As reported by NPR, the law stated that work performed in the furtherance of 

[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

was exempt from the 50% salary bump requirement. That’s good for Oakhurst Dairy as it appears that drivers weren’t overtime-eligible, as they’re engaged in the “distribution of perishable foods.” But the truck drivers disagreed. They argued that while the law may have intended to exclude them, that’s not how it’s actually written. Because there is no comma after the “packing for shipment” clause, the law, they believed, exempted “packing for [. . .] distribution” and not the distribution itself. In 2014, five truck drivers brought a class action against Oakhurst Dairy, demanding $10 million in unpaid overtime over the previous few years, according to NBC News

At first, the court agreed with Oakhurst, finding that while the lack of comma didn’t matter. But on appeal, the drivers won. The First Circuit Court of Appeals opined (pdf) that the law was “ambiguous, even after we take account of the relevant interpretive aids and the law’s purpose  and legislative history.” And because the precedent in Maine is to favor workers over employees (basically; I’m not being wholly precise here, but it’s complicated), they found in favor of the drivers. The appeals court sent the case back to the lower court to deal with other issues, like determining whether that $10 million demand was too high, but it didn’t matter — Oakhurst had lost, and they knew it. The two sides settled for $5 million, to be distributed among 127 truck drivers (and their lawyers).

The Maine legislature ultimately fixed the law. They didn’t add a comma, though; they went with a  bunch of semicolons. As the New York Times reported, the law now reads:

The canning; processing; preserving; freezing; drying; marketing; storing; packing for shipment; or distributing of:

(1) Agricultural produce;

(2) Meat and fish products; and

(3) Perishable foods.

That doesn’t impact the $5 million settlement, but going forward, Oakhurst Dairy doesn’t have to pay overtime to its truck drivers.


Bonus fact: The United States, the UK, Australia, and many other countries use a period as their decimal separator, which means that the number “two and a quarter” written out in digits is “2.25” in those areas. Many other countries — including France — use a comma as their decimal separators, so “two and a quarter” would be written out in digits as “2,25” in those countries. But in Canada, it depends. Most of the country is English-speaking, and those areas use the period. The French-speaking areas, though, use a comma.

From the Archives: Comma Chameleon Law: Another comma-related legal mishap.