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In a recent case, 1 1 O'Connor v. Oakhurst Dairy. the First Circuit Court of Appeals was called upon to interpret an aspect of Maine’s laws on overtime pay. 2 2 26 M.R.S.A. § 664(3). At issue in the case was Exemption F, which provides that the overtime provision does not apply to:
The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of:
- Agricultural produce;
- Meat and fish products; and
- Perishable foods.
As the court put it:
The parties’ dispute concerns the meaning of the words “packing for shipment or distribution.”
The delivery drivers contend that, in combination, these words refer to the single activity of “packing,” whether the “packing” is for “shipment” or for “distribution.” The drivers further contend that, although they do handle perishable foods, they do not engage in “packing” them. As a result, the drivers argue that, as employees who fall outside Exemption F, the Maine overtime law protects them.
The court’s judgment begins: “For want of a comma, we have this case.”
But that’s a highly misleading opening that the court probably now regrets. That’s the trouble with trying for a headline.
In fact — and contrary to many reports of the case by people who evidently haven’t bothered to read the whole judgment — the court did not decide the case on the basis of the absence of a comma.
On the contrary, it found that the text was so ambiguous that it was impossible to tell whether “packing” was meant to refer just to “shipment” or also to “distribution.” So the court declared the result of the textual analysis a “tie” and proceeded to decide the case on a different basis, namely:
The default rule of construction under Maine law for ambiguous provisions in the state’s wage and hour laws [which says] that they “should be liberally construed to further the beneficent purposes for which they are enacted.” 3 3 Dir. of Bureau of Labor Standards v. Cormier, 527 A.2d 1297, 1300 (Me. 1987).
I don’t have any problem with that approach, and the outcome of the case seems quite appropriate. Those working overtime get paid for doing so.
But the court’s declaration that the textual analysis results in a tie cannot withstand scrutiny. Nor, it should be said, can the attempts of many commentators, who have insisted upon focusing on commas instead of upon meaning. 4 4 An honorable exception is Merrill Perlman, Don't work overtime: The final word on the Oxford comma.
The truth is that reading “packing” to refer not just to “shipment” but also to “distribution” simply makes no sense to any native English speaker. It’s easy to show this by simply writing out the sentence without the clutter of paragraph enumeration. It then becomes:
The overtime provision does not apply to the canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of Agricultural produce.
Just try reading that aloud.
The only way that any native English speaker would be able to get “packing” to refer not just to “shipment” but also to “distribution” would be if there were something else in the list that followed distribution, like this:
The overtime provision does not apply to the canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution, or reconstituting of Agricultural produce.
And note, too, that whether there is a comma before “or reconstituting” also turns out to be a red herring. If I write the sentence without that comma, it becomes impossible to comprehend unless the reader still pauses in precisely the same place where that comma would have been:
The overtime provision does not apply to the canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution or reconstituting of Agricultural produce.
Amazingly, English turns out to be much easier to understand if you appreciate that a speaker or writer is intending to convey some sort of meaning.
If, however, you presume that words and characters are just random collections of squiggles unless they can be deciphered by a form of relatively sophisticated decryption, you shouldn’t be too surprised if you end up with a lot of mumbo-jumbo.
In other words, there is no ambiguity here at all. It’s been manufactured by lawyers who appear to believe that it is appropriate to treat a living language as if it were math. It isn’t.
Living languages don’t have “rules” in the sense that math has rules. There are, instead, merely methods of conveying meaning without ambiguity, some of which work so well (like noun-verb agreement) that they might as well be rules.
Even then, though, application of grammatical “rules” can still sometimes cause momentary alarm.
When I lived in Germany, there was an occasion when I made a brief trip back to the UK. Before I went, a German friend asked me to bring back some English marmalade for his wife. (It’s a very bitter preserve, but some people really love it.) Anyway, I did so, and a couple of weeks later he told me that everyone in the family had tried it. Then he said:
Aber die Marmalade ißt nur die Mutti.
That’s perfectly grammatical, but German word order “rules” specify only the position of the verb, and not that of the subject or object of the sentence. So that particular sentence could mean either:
But only Mom eats the marmalade.
But the marmalade only eats Mom.
Would the judges in the First Circuit Court of Appeals have called that a tie too?