A Comma Rule Goes To Court

Which is correct?: men, women, and children. Or men, women and children.

Some authorities, including many newspaper style sheets, say that you don’t need a comma after the last item in a series when it is preceded by a conjuction. The reasoning is that the conjunction (e.g., and) separates the last item from the rest of the list.

Other authorities insist that you do need the comma before the conjunction. This so-called “Oxford comma” is necessary because a conjunction joins words. It makes no sense to have a conjunction both join and separate the items in a list. (This is the rule that I have taught and live by.)

But now a court has weighed in, sort of. Consider this phrase in a legal description of work rules that define what does not merit overtime pay:

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.

Look at the conjunction “or.” Is “packing for shipment or distribution” one thing. Or is it referring to two separate processes as part of the previous list?: “packing for shipment, or distribution. . . .”?

“Packing for shipment or distribution” would not earn overtime pay. But just plain distribution–the guys who drive the trucks–would get overtime. If there is an Oxford comma, however, “distribution” would be a separate category that would not get overtime and the truck drivers would be out of luck.

I would say that what governs the series is not so much whether or not there is a comma but another rule for series: that they have grammatically parallel constructions. This is a series of gerunds: -ing added to a verb to make a noun. We have eight of them: processing, preserving, freezing, drying, marking, storing, packing.

At stake in the grammar and punctuation of this sentence is much money in overtime pay and back wages. See how the judge ruled after the jump.

From Thu-Huong Ha, The Oxford comma: A Maine court settled the grammar debate over serial commas with a ruling on overtime pay for dairy-truck drivers — Quartz:

A Maine court ruling in a case about overtime pay and dairy delivery didn’t come down to trucks, milk, or money. Instead, it hinged on one missing comma.

Delivery drivers for local milk and cream company Oakhurst Dairy have been tussling with their employers over whether they qualify for overtime. On March 13, a US court of appeals determined that certain clauses of Maine’s overtime laws are grammatically ambiguous. Because of that lack of clarity, the five drivers won their appeal and were found eligible for overtime. The case now can be heard in a lower court.

The profoundly nerdy ruling is also a win for anyone who dogmatically defends the serial comma.

The serial comma, also known as the Oxford comma for its endorsement by the Oxford University Press style rulebook, is a comma used just before the coordinating conjunction (“and,” or “or,” for example) when three or more terms are listed. You’ll see it in the first sentence of this story—it’s the comma after “milk”—but you won’t find it in the Maine overtime rule at issue in the Oakhurst Dairy case. According to state law, the following types of activities are among those that don’t qualify for overtime pay:

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.

There, in the comma-less space between the words “shipment” and “or,” the fate of Kevin O’Connor v. Oakhurst Dairy was argued. Is packing (for shipment or distribution) a single activity that is exempt from overtime pay? Or are packing and distributing two different activities, and both exempt?

If lawmakers had used a serial comma, it would have been clear that distribution was an overtime-exempt activity on its own. But without the comma, wrote US appeals judge David J. Barron, the law is ambiguous as to whether distribution is a separate activity, or whether the whole last clause—”packing for shipment or distribution”—is one activity, meaning only the people who pack the dairy products are exempt. The drivers do distribute, but do not pack, the perishable food.