Employee Contracts, Policies, Handbooks, and the Proper Use of the Humble Comma

Anyone who drafts employee policies, handbooks, or contracts should take note of a recent case which, believe it or not, turned on a missing comma.

And you thought lessons in grammar and punctuation ended in high school.

In March 2017, the United States Court of Appeals for the First Circuit held that certain Maine truck drivers might be entitled to overtime pay because of a missing “Oxford comma” in a Maine statute. An “Oxford comma” is a comma used after the next-to-last item in a list of three or more items, before the “and” or “or” that precedes the final item.

In O’Connor v. Oakhurst Dairy, truck drivers sued their employer for violating state overtime laws. The relevant statute stated that the overtime laws did 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.

The dispute, of course, involved the meaning of “packing for shipment or distribution,” because no comma separated these last two items.

The delivery drivers contended that, in combination, these words refer to the single activity of “packing,” whether that “packing” was for “shipment” or for “distribution.” The drivers also argued that, although they do handle perishable foods, they do not engage in “packing” them. As a result, the drivers argued, employees who fall outside of this statutory exemption are protected by Maine overtime law and thus entitled to overtime pay.

Their employer, however, argued that the disputed words actually referred to two distinct exempt activities, the first being “packing for shipment” and the second being “distribution.”  And because the delivery drivers quite obviously engaged in the “distribution” of dairy products, which are “perishable foods,” the employer contended that the drivers fell within the statutory exemption, and thus outside the overtime law’s protection.

“For want of a comma,” the federal appeals court wrote, “we have this case.” The court held that because of the missing comma, the state statute was ambiguous, and therefore had to be construed in the drivers’ favor.

So why should employers and their HR directors care about a case involving a missing Oxford comma?

Courts uniformly hold that ambiguities in all kinds of business documents must be construed against the party who wrote the document. Because employers draft employee policies, employee handbooks, and employee contracts, courts will construe any such ambiguity — including such things as missing commas — against the employer.

Let’s say, for example, that an employer drafts an employment contract, giving the employer the right to fire the employee for cause, and deprive the employee of severance pay, if the employee engages in “conduct such as malfeasance, misfeasance, gross negligence and breach of fiduciary duty.” The employer then fires the employee for cause due to a breach of fiduciary duty that does not rise to the level of gross negligence. The employee could argue that the missing comma after “gross negligence” (and before “and breach of fiduciary duty”) creates an ambiguity that entitles him to severance pay.

This may seem like an absurd result. But to paraphrase the First Circuit’s decision in O’Connor v. Oakhurst Dairy, you don’t want to be the employee who, for want of a comma, creates litigation for your employer.

Anyone who drafts policies or contracts for their employer should remember what their sixth-grade teacher told them: punctuation matters.

For more information regarding the use of clear language in contracts, agreements, and policies, or any other employment-related matters, please contact your Much Shelist attorney.

Bob Neiman, co-chair of the firm’s Health Care practice, is an experienced litigator who focuses his practice on health care regulatory counseling and litigation, employment-related counseling and litigation, and commercial litigation, including insurance coverage matters and other business disputes.

This article contains material of general interest and should not be construed as legal advice or a legal opinion on any specific facts or circumstances. Under applicable rules of professional conduct, this content may be regarded as attorney advertising.