Could a comma cost you $10M?

If you think that “never underestimate the importance of a comma” sounds like an exercise in uber-pedantry, then just ask the US dairy company now facing an overtime bill of approximately $10M about their recent experience. And it’s all because of one of those innocuous-looking little black squiggles known as the Oxford comma.

Rarely used in the UK or Australia, but widely used in the US, an Oxford comma is used after the penultimate item in a list of three or more, and is placed before “and” or “or”. For example, “Attending the ball were a ventriloquist, an escapologist, and a magician.”  The comma after “escapologist” makes it clear that there are three artistes attending this soirée, not two – one of whom would be performing a double act.

In this latest case involving a contentious comma, Maine’s Oakhurst Dairy is appealing the US court’s decision which ruled that the lack of a comma in the state’s overtime laws made the regulations ambiguous. In 2014, three truck drivers took steps to sue the dairy for more than four years’ overtime pay which they claim they and their colleagues had been denied.

Everything hinged on legal wording which stated that the following activities didn’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.”

Was the law intending to exempt the distribution of the three categories? Or did it mean to exempt packing for the shipping or distribution of them? Oakhurst Dairy drivers don’t pack the goods; they only distribute them. Had there been a comma after “shipment” it may well have been clear that the law exempted the distribution of perishable foods. But there wasn’t.

The absence of this one comma was crucial because it caused enough uncertainty in how the law should be read to convince the judges to rule in the drivers’ favour.

Understandably, the employees were ecstatic about their win. What’s more, they argued the overtime rates they were missing out on should be backdated over several years. The judges agreed, overruling an earlier decision which sided in favour of the dairy.

Some 75 individuals were part of the class-action lawsuit which began in 2014 against Oakhurst Dairy. Earning between $46800 and $52000 a year without overtime, the victory will have a real impact on the company’s drivers who regularly work 12 hours extra every week.

So, the Oxford comma – also known as the serial comma – makes its relevance felt once again. As David G. Webbert, the lawyer defending the drivers, said in an interview after the decision was handed down, “That comma would have sunk our ship”.

This case may sound like a “one off” but, surprisingly, it’s not. There are many instances of exactly the same sort of scenario ending up in expensive legal battles and causing real brand damage. What about your own organisation?  Are you confident that what you’ve written about your business is what you really meant to say?  Might be a good time to invest in getting that checked.

For expert advice and help with proofreading any of your B2B documents, give Rosemary Gillespie a call on 02 8036 5532 or 0411 123 216 or head to the contact page.

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