First Circuit Revives Class-Action Overtime Lawsuit over Absent Comma

Friday, March 17, 2017

Sometimes, small things can turn out to be very big.  Take punctuation, for instance.  Just recently, the First Circuit Court of Appeals issued a decision that proves the point: finding that an absent comma created an ambiguity in Maine’s overtime law, the court reversed summary judgment against several truck drivers and revived their class-action lawsuit against Oakhurst Dairy for unpaid overtime.

At issue in the court’s decision is the meaning of an exemption in the overtime law that covers employees whose work involves the “canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution” of certain food products.  The specific issue revolves around the meaning of “packing for shipment or distribution,” which the parties had disputed during summary judgment proceedings at the District Court. The drivers argued that the phrase refers to the single activity of “packing,” which may be done for either “shipment” or “distribution.”  Because the drivers were not involved in “packing” goods, the drivers argued that they did not fall under the exemption and were therefore entitled to overtime. Oakhurst argued, however, that the phrase “packing for shipment or distribution” encompasses two distinct activities – “packing for shipment” and “distribution” – each of which is a stand-alone exempt activity.  Because the delivery drivers were engaged in the “distribution” of goods, Oakhurst argued that the drivers were exempt and therefore not entitled to overtime. After considering these dueling interpretations, the District Court agreed with Oakhurst’s interpretation and granted summary judgment in its favor.

The drivers appealed and presented the First Circuit with a single question, which was: what does the phrase “packing for shipment or distribution” really mean?  To resolve this question, the court looked first to Maine precedent construing the exemption.  Although Oakhurst pointed to a Superior Court decision construing the exemption in its favor, the First Circuit declined to give it any weight as it was not binding authority.  So, the court turned to the text of the exemption and addressed several canons of interpretation offered by the parties.

For its part, Oakhurst argued that its interpretation was supported by the rule against surplusage, which treats each word in a statute as having an independent meaning so as to eliminate redundancies.  Explaining that “shipment” and “distribution” are synonyms, Oakhurst argued that its interpretation was the only way to avoid making the words “shipment” and “distribution” redundant.  Oakhurst also pointed to the convention of using a conjunction to indicate the last item in a series and argued that the lack of a conjunction before “shipment,” and the presence of one before “distribution,” indicated that “distribution” was the last item in the series. Finally, Oakhurst argued that, although a serial comma before “distribution” and after “shipment” would have conclusively established its interpretation, the serial comma was missing because the drafting manual for the Maine Legislature expressly advises drafters not to use it (advice that certainly did not come from E.B. White or his Elements of Style).

Countering Oakhurst’s interpretation, the drivers argued that “shipment” and “distribution” are not synonyms and that their use in connection with “packing” creates no redundancies.  Digging further into the text of the exemption, the drivers pointed out that it is comprised of a series of verbal nouns that ends with “packing” and that, because “shipment” and “distribution” are the only non-verbal nouns in the series, the doctrine of parallel usage implies that those terms serve the same grammatical role by modifying “packing.” As for the missing serial comma, the drivers argued that the Legislature’s drafting manual is not “dogmatic” and that, if the Legislature had actually intended “distribution” to be a distinct activity, the missing comma would give rise to the very ambiguity that the drafting manual was intended to avoid.

Acknowledging  that there was “no comma in place to break the tie” between the parties’ interpretations, the First Circuit turned to the exemption’s purpose and legislative history. However, the court found these provided no more clarity than the text. Finding itself back where it began, the court fell back on yet another rule of construction, which instructs that where a provision in the state’s wage and hour laws is ambiguous, the provision should be construed liberally to further the remedial purpose of the statute.  Applying that rule of construction in this case, the court concluded that the ambiguity favored the drivers’ more narrow interpretation of the exemption.