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Missing comma means millions in overtime pay

comma“For want of a comma, we have this case.” This from one of the Judges in O’Connor et al v Oakhurst Dairy et al (Oakhurst).

The comma in question is known as the Oxford Comma, the Harvard Comma, or the serial comma. In a list of items, the Oxford Comma is the one placed just before the “and” or the “or” which joins the last item in the list. For example:

Sentence without the Oxford Comma Sentence with Oxford Comma
I like apples, bananas and pears. I like apples, bananas, and pears.

In many cases, omitting the Oxford Comma will not cause confusion. In the example above, in the context of a discussion about fruits, both sentences are equally clear.

However, omitting the Oxford comma in the following sentence could lead to ambiguity:

Sentence without the Oxford Comma Ambiguity – what are the names of the firms?
She has worked at several firms, including Hazlewoods, Cooper and Brown and Fisher. 1.       Hazlewoods

2.       Cooper and Brown

3.       Fisher

1.       Hazlewoods

2.       Cooper

3.       Brown and Fisher

Oakhurst

Oakhurst involved an ambiguity in a Maine statute dealing with overtime pay. Under the statute, employees involved in certain activities were exempt from the overtime provisions, so they were not entitled to overtime pay. A group of drivers in Oakhurst argued that they were entitled to overtime pay.

The overtime provision related to the activities of “packing” and “distribution” could be interpreted in two ways:

The overtime provision Interpretation 1 Interpretation 2
Overtime protection does not apply to:

“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.”

No overtime pay for a driver who is involved in the single activity of “packing”, whether the “packing” is for “shipment” or for “distribution”. No overtime pay for a driver who is involved in either of two activities – the first being “packing for shipment” and the second being “distribution”.

The drivers picked Interpretation 1; they did not pack for shipment or distribution, therefore the exemption from overtime pay did not apply to them, and consequently, they are entitled to overtime pay.

Their employer picked Interpretation 2; the drivers engaged in distribution, therefore the exemption from overtime pay applied to the drivers, and consequently, they are not entitled to overtime pay.

The Court applied rules of construction and grammar, and statutory interpretation tools, and concluded that Interpretation 1 applied; the drivers did not engage in the single activity of “packing for shipment or distribution”, and consequently, the drivers are entitled to overtime pay.

Had the provision included an Oxford Comma after shipment, so that it read “packing for shipment, or distribution of:”, the outcome might have been different. An overwhelming number of writing authorities recommend using the Oxford Comma to avoid ambiguity.

Apolone Gentles, JD, CPA,CGA, FCCA, Bsc (Hons)

Apolone Gentles is a CPA,CGA and Ontario lawyer and editor with over 20 years of business experience. She has held senior leadership roles in non-profit organizations, leading finance, human resources, information technology and facilities teams. She has also held senior roles in audit and assurance services at a “Big Four” audit firm. Apolone has also lectured in Auditing, Economics and Business at post-secondary schools.
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