The use of the Oxford comma has been a hotly debated topic among grammarians and writers for quite some time. On the one hand, newspaper reporters and others who adhere to AP Style vehemently oppose its use. On the other, proponents of the Oxford comma laud it as necessary for the sake of clarity. In this ongoing war of commas, the First Circuit Court of Appeals’ recent decision in O’Connor v. Oakhurst Dairy provides strong ammunition in favor of the comma’s use.
What Is the Oxford Comma (and Who Cares)?
The Oxford comma is the comma before the conjunction in a list. For example, in the sentence “The U.S. flag is red, white, and blue,” the Oxford comma appears right before the “and.” Detractors of the comma’s use would argue that it is wholly unnecessary–no reasonable person would misinterpret this sentence without the Oxford comma. While that argument may hold water in the context of a relatively simple sentence, supporters of the Oxford comma will be happy to know that, in O’Connor v. Oakhurst Dairy, the federal First Circuit Court of Appeals ruled against Oakhurst Dairy because the statute at issue was ambiguous and did not contain an Oxford comma.
Background of O’Connor v. Oakhurst Dairy
The court succinctly sums up the ultimate issue of the case in the first sentence of its opinion: “For want of a comma, we have this case.”
The case was a dispute between Oakhurst Dairy and its delivery drivers over unpaid overtime, and concerned the scope of Maine’s overtime law. Maine’s law provides that employees cannot be required to work more than 40 hours per week unless they are paid 1 ½ times their normal hourly wage. However, this law exempts employees engaged in “[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.”
Note the crux of the case: the absence of a comma before “or distribution.”
The delivery drivers argued that “packing for shipment or distribution” encompasses only the activity of packing, i.e., packing for shipment and packing for distribution. Since the delivery drivers did not necessarily engage in “packing,” they may have been entitled to overtime. Oakhurst Dairy responded by arguing that the phrase encompasses two distinct acts, “packing for shipment” and “distribution,” in which case the drivers necessarily fall within the exemption because they engaged in “distribution.”
A Win for the Delivery Drivers (and the Oxford Comma)
The district court granted summary judgment against the delivery drivers, concluding that the Maine Legislature unambiguously intended for the exemption to apply to those engaged in “distribution.”
The First Circuit reversed, concluding that the statute was, in fact, ambiguous. Both sides made many arguments, most centering around canons of statutory interpretation, linguistic conventions, and definitions. However, one of Oakhurst Dairy’s arguments was that the Maine Legislative Drafting Manual (The Manual) states that “when drafting Maine law or rules, don’t use a comma between the penultimate and the last item of a series” and that the Maine Legislature always omits this comma. However, the delivery drivers countered this argument by pointing to guidance in The Manual on avoiding ambiguity that not using an Oxford comma could create. The First Circuit held that these provisions in The Manual, along with both sides’ interpretive arguments, made the statute ambiguous.
As a result of this ambiguity, the court’s inability to find any clear legislative intent, and the principle that, under Maine law, wage and hour laws must be construed liberally, the court ultimately ruled in favor of the delivery drivers.
This case illustrates the point that grammar matters. This is particularly true in the area of legislation–who knows if Maine’s overtime law was applied as the Legislature intended. It is also true in other areas, such as contract law (where ambiguity in a contract is interpreted against the drafter) and academia (where a reader might misinterpret the position of the author of an article).
Clarity is important. At O’Connor’s, we always strive to write in plain English—and we use the Oxford comma.
 See Arika Okrent, The Best Shots Fired in the Oxford Comma Wars, mental_floss, Jan. 22, 2013.
 See Ann Edwards, What Is the Oxford Comma and Why Do People Care So Much About It?, Grammarly; Gus Lubin, The Oxford Comma Is Extremely Overrated, Business Insider, Sept. 20, 2013.
 See Liz Bureman, Why You Need to Be Using the Oxford Comma, The Write Practice.
 See Edwards, What Is the Oxford Comma and Why Do People Care So Much About It?; Lubin, The Oxford Comma Is Extremely Overrated.
 See Lubin, The Oxford Comma Is Extremely Overrated.
 O’Connor v. Oakhurst Dairy, ___ F.3d ___ (1st Cir.2017) (No. 16-1901; 3-13-17).
 Id. §664(3)(F).
 Maine Legislative Drafting Manual 113 (Legislative Council, Maine State Legislature 2009).