"For want of a comma"

The following sentence is from an exemption to Maine’s overtime law:  “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.” Under the exception, employees engaged in these specified job processes are not entitled to overtime.

In O'Connor v. Oakhurst Dairy, --- F.3d ---, 2017 WL 957195 (1st Cir. 2017), a dairy’s delivery drivers sued claiming that they were entitled to overtime because they don’t “pack for distribution”; therefore, they are not exempt from the overtime law. The drivers’ argued that the lack of a comma between “shipment” and “or” results in the exemption applying only to those involved in “packing for distribution.”

The district court said “oh pooh, everyone knows that Maine’s legislature intended “packing” to modify “for shipment” and not “distribution.” The First Circuit said “not so fast lowly district judge.” The court goes through a lengthy discussion about the various grammar arguments in favor of each interpretation, e.g., parallelism and asyndeton.

You should use the serial or Oxford comma before the conjunction that joins the last two items in a series of three or more. The Chicago Manual of Style § 6.18 (16^th ed. 2010). The Maine legislature violated this rule, and this led to this overtime case going to the First Circuit. In their defense, however, the drafters followed the Maine Legislative Drafting Manual that specifically directs drafters to omit the comma “between the penultimate and the last item of a series.” The manual goes on to provide that the comma should be used if needed to prevent ambiguity. The strongest points in favor of the dairy are the manual and the absence of a conjunction before “packing.” If “packing for shipment or distribution” were intended to be the last element in the series—as the drivers argue—one would expect a conjunction before “packing.”   

The First Circuit noted that each item in the list is a gerund, and parallelism requires that “every element of a parallel series must be a functional match of the others . . . and serve the same grammatical function . . . .” O’Connor v. Oakhurst Dairy, --- F.3d ---, 2017 WL 957195 at *5 (1^st Cir. 2017) (citing The Chicago Manual of Style § 5.212 (16^th ed. 2010)). Each gerund refers to a stand-alone activity; therefore, “packing”—the last gerund in the list—applies to both “shipment” and “distribution.” And the lack of the serial or Oxford comma, when coupled with the court’s other grammar observations, led the court to conclude that “for want of a comma” the drivers were entitled to overtime.

Some of you were trained not to use the serial comma, but I urge you to follow The Chicago Manual of Style: “Chicago strongly recommends this widely practiced usage . . . since it prevents ambiguity.” The Chicago Manual of Style § 6.18 (16^th ed. 2010). By quoting Chicago’s use of “since” I made the skin of some of you crawl; you prefer or insist that “since” be used only in the temporal sense; you prefer that “because” be used here. You are free to reject “since” in a causation sense, but such use pre-dates Chaucer. Superstitions, Bryan A. Garner, Garner’s Modern English Usage (4th ed. 2016), at p. 877. So I wouldn't be too hard on those who use "since" in both senses.