Dairy Farmers & a Missing Comma: O’Connor v. Oakhurst Dairy

By: Tommy Tobin*

A missing comma caused much consternation over the meaning of a state’s employment laws at the First Circuit recently. In a March 13, 2017 decision, the appellate court worked overtime to analyze Maine’s Wage and Hour Law and a specific statutory exemption that would apply to drivers of enumerated food products.

Specifically, this exemption noted that Maine’s overtime protection would not apply to workers involved in “[t]he 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.” 26 M.R.S.A. § 664(3)(F) (emphasis added). The emphasized portion was the core of the dispute, and the court’s reasoning provides insights for lawyers arguing about ambiguity before the First Circuit.

The delivery driver plaintiffs argued that the exemption referred to the packing, either for shipment or distribution, of perishable foods. They neither packed product for shipment nor packed it for distribution. As the drivers were involved with the delivery, not the packing of these foods, they claimed they fell outside the exemption and, therefore, were allowed to collect overtime pay.

The dairy farm defendants were steamed and contended in opposition that the exemption referred to two distinct activities, either packing or distributing the food products. As the delivery drivers distributed these foodstuffs, the defendants argued that they were subject to the statutory exemption and would fall outside the state’s overtime protections.

The court below had ruled in favor of the dairy farm defendants, with a federal magistrate and district judge ruling that the drivers fell within the statutory exemptions. The court reviewed the case de novo.

Writing for the unanimous panel, Judge David Barron concluded that the text was ambiguous but noted that the exemption was “clearer than it looks.” Beginning with a textual analysis, Judge Barron examined Maine’s legislative drafting conventions, grammar, and gerund usage. In a footnote, he also examined the actual practice of the dairy farm, writing:

“We also note that there is some reason to think that the distinction between ‘shipment’ and ‘distribution’ is not merely one that only a lawyer could love. Oakhurst’s own internal organization chart seems to treat the two as if they are separate activities.”

Unfortunately, the text did not get the court very far, turning out to be a tie between the parties. The court then turned to the legislative history behind the provision, examining the changes to the state’s law over time. After several pages spent examining the state’s employment laws related to workers handling perishable foods, the court was no further along than where it began.

The court did not cry over the spilled ink in this dairy farm case. Instead, the panel looked to the state’s default rule of statutory construction when examining ambiguous passages within its wage and hours laws. Relying on state supreme court precedent, the court reasoned that ambiguity must be read liberally as “to further the beneficent purposes for which they are enacted.” With regard to the state’s wage and hour law, the law’s opening subchapter declared, inter alia, that workers should receive compensation commiserate with services rendered.

Even with the “opacity of the text and legislative history” involved with this case, the First Circuit panel was satisfied that the state’s default rule of statutory construction favored the delivery drivers. The drivers’ interpretation “further[ed] the broad remedial purpose of the overtime law,” namely providing overtime pay to employees. Accordingly, the court reversed the district court’s decision below.

Despite Vampire Weekend’s suggestion to the contrary, the First Circuit does indeed care quite a bit about commas. The Oakhurst Dairy case is more than one that would fascinate grammar and statutory interpretation aficionados. Instead, it suggests the First Circuit’s preferred order of operations when it comes to ambiguous text. The court first looked at the plain meaning of the text itself, then went to its historical antecedents and purpose, and finally to the jurisdiction’s default rule. The case provides lessons for lawyers arguing about ambiguity before the court so that they may—to paraphrase John Mayer—say what they need to say.

*Tommy Tobin is a graduate of Harvard Law School and the Harvard Kennedy School. Tommy has served as a Teaching Fellow in the Harvard Economics Department and Instructor of Law at UC Berkeley’s Goldman School of Public Policy. His writing has appeared in scholarly journals and major newspapers, such as the Baltimore Sun, Charlotte Observer, and San Francisco Chronicle.