Who gives a $#%@ about an Oxford comma? Dairy delivery drivers.

March 15, 2017 1:18 PM

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.
posted by DirtyOldTown (54 comments total)

trucks, milk, or money

I see what they did there, and I approve
posted by chavenet at 1:20 PM on March 15, 2017 [12 favorites]

OXFORD COMMA 4 LYFE
posted by cooker girl at 1:24 PM on March 15, 2017 [87 favorites]

Maybe pay people for their overtime.
posted by ODiV at 1:26 PM on March 15, 2017 [19 favorites]

Wow. Spooky when you click to favorite someone and 3 favorites appear.
posted by Samizdata at 1:27 PM on March 15, 2017 [1 favorite]

,
posted by anothermug at 1:27 PM on March 15, 2017 [8 favorites]

So I'm going to be that guy who jumps in and says why this is an incorrect decision after thinking about it for only 30 seconds. The court was presented with two possible interpretations for the list of jobs that aren't eligible for overtime:

A. The (canning), (processing), (preserving), (freezing), (drying), (marketing), (storing), (packing for shipment or distribution) of ...

B. The (canning), (processing), (preserving), (freezing), (drying), (marketing), (storing), (packing for shipment) or (distribution) of ...

The court chose option A, even though it's ungrammatical (consisting of a comma-delimited list with no conjunction) and disagrees with the official style guide. If the law had been written using the Oxford comma, it should have looked like:

C. The (canning), (processing), (preserving), (freezing), (drying), (marketing), (storing), or (packing for shipment or distribution) of ...

But that's not what the text said. Am I wrong?
posted by teraflop at 1:28 PM on March 15, 2017 [6 favorites]

NO OXFORD COMMA EXCEPT WHEN ITS ABSENCE WOULD CREATE UNNECESSARY AMBIGUITY SO I SUPPORT THIS DECISION AND ALSO THE AP STYLE GUIDE
posted by Holy Zarquon's Singing Fish at 1:29 PM on March 15, 2017 [18 favorites]

Oakhurst, for its part, had argued that “distribution” was separate in the language of the law, meaning its drivers did not qualify for overtime.

In an impressively geeky retort, the drivers responded that all the other exempted activities were listed as gerunds, words ending with “-ing”: Canning, processing, preserving, freezing, drying, marketing, storing, packing. The word “distribution,” they argued, was therefore not intended to be one of the items in the list.

That is some tasty nerdery right there.
posted by DirtyOldTown at 1:31 PM on March 15, 2017 [31 favorites]

Do we not do Oxford commas well? I can't remember.
posted by thelonius at 1:32 PM on March 15, 2017 [3 favorites]

Half of us do not do Oxford commas well. Which half is the point of contention.
posted by ricochet biscuit at 1:36 PM on March 15, 2017 [40 favorites]

The plaintiffs should have cited: "Worked on contingency basis? No, money down!"
posted by dances_with_sneetches at 1:38 PM on March 15, 2017 [13 favorites]

*eats popcorn and leaves*
posted by AFABulous at 1:39 PM on March 15, 2017 [56 favorites]

Agricultural workers frequently get screwed on rights. I'm a Oxford comma proponent and, more so, a proponent of fair pay for workers. Kindly
posted by theora55 at 1:41 PM on March 15, 2017 [7 favorites]

teraflop, that argument was considered on p16-19 of the judgment. Leaving out the final conjunction in a list is sometimes done in legislative drafting. The Court said it wasn't prepared to definitively accept that this non-standard grammar was consciously used here, but it had to be weighed against other grammatical problems with the provision.

In the end the court said a strict grammatical analysis doesn't really help because there are grammatical conventions pointing in both directions - which is often the case when something is truly ambiguous.

Instead, they had to apply a rule of statutory interpretation that requires a court to resolve ambiguity by construing the provision liberally so as to further the "beneficent purpose" of the statute. Given that this was an exemption from overtime laws, it should be read narrowly to exempt fewer people from the statute's intended application.
posted by robcorr at 1:48 PM on March 15, 2017 [17 favorites]

Additionally, there was this argument:

In an impressively geeky retort, the drivers responded that all the other exempted activities were listed as gerunds, words ending with “-ing”: Canning, processing, preserving, freezing, drying, marketing, storing, packing. The word “distribution,” they argued, was therefore not intended to be one of the items in the list.

Which is totally awesome.
posted by teleri025 at 1:53 PM on March 15, 2017 [3 favorites]

...and I fail at reading the other comments.
posted by teleri025 at 1:54 PM on March 15, 2017

If the law had been written using the Oxford comma, it should have looked like:

C. The (canning), (processing), (preserving), (freezing), (drying), (marketing), (storing), or (packing for shipment or distribution) of ...

But that's not what the text said. Am I wrong?
teraflop

Yes. You're getting it backwards.

The court's point was that if the law intended to make distribution an exempt activity and was written using the Oxford comma, it should have read:

The (canning), (processing), (preserving), (freezing), (drying), (marketing), (storing) (packing for shipment), or (distribution) of ...

This is, I think, where your error comes in because this is how your option B. should have been written, not the way you presented it. The options were either reading "distribution of" as a separate activity that is also exempt, or as linked as one activity with "packing for shipment".

But in any case, the law wasn't written that way. As written there is ambiguity, for the reasons robocorr notes and additional ones the drivers argued. Which brings up:

and disagrees with the official style guide

Except as the court noted, it doesn't:

The manual also contains a proviso—”Be careful if an item in the series is modified”—and then sets out several examples of how lists with modified or otherwise complex terms should be written to avoid the ambiguity that a missing serial comma would otherwise create.

So by not using the Oxford comma, we've ended up in exactly the ambiguous situation that the style manual specifically warns against creating.
posted by Sangermaine at 1:57 PM on March 15, 2017 [9 favorites]

This decision is great for nerds, politicians, and manufacturers of sex toys.
posted by Brandon Blatcher at 2:02 PM on March 15, 2017 [1 favorite]

nerds, manufacturers of sex toys and politicians
posted by RobotHero at 2:14 PM on March 15, 2017 [19 favorites]

Keep in mind that for almost the entire 80's, Earnest P. Worrell (Jim Varney) served as the spokesman for Oakhurst Dairy. While the commercials were funny, they weren't know for their blazing intelect then... Apparently it has now cost them. Know what I mean, Vern?
posted by Nanukthedog at 2:14 PM on March 15, 2017 [1 favorite]

nerds, manufacturers of sex toys and politicians
posted by RobotHero at 5:14 PM on March 15 [+] [!]

There are plenty of nerds that manufacture sex toys,. Too few nerds manufacture politicians.
posted by Nanukthedog at 2:17 PM on March 15, 2017 [2 favorites]

As a grammar anarchist, I find this to be delightful. If the lawmakers had simply ignored the punctuation prescriptions in favor of the rule to avoid ambiguity, all would have been well. The comma is a low bit of punctuation, and the usage rules have been badly mangled over the centuries. It's almost as bad as the apostrophe.
posted by surlyben at 2:17 PM on March 15, 2017 [3 favorites]

Anybody named Jack who doesn't want to use the Oxford comma can share the $500K inheritance between Bob, Bill and Jack, and suck it up if they only get $125K. Bob's happy!

I'm sure Bill is Oxford forever, because he'd rather have the $166,666.66 than $125K.

But then again, maybe Jack prefers the JFK and Stalin performance.

Among others who have taught me the importance of the Oxford comma, I'd like to thank my parents, Ayn Rand and God.
posted by BlueHorse at 2:38 PM on March 15, 2017 [5 favorites]

Among others who have taught me the importance of the Oxford comma, I'd like to thank my parents, Ayn Rand and God.

Out of curiosity, what if you were estranged from your father? Would you then thank your mother, Ayn Rand, and God?

That example comes from a copy editor I greatly respected, the Washington Post's Bill Walsh. I highly recommend poking about his blog, or maybe buying his books if you're seriously into grammar nerdery. He died today at the age of 55 and I am devastated. I thought of posting a thread on its own, but since this thread is here:

.
posted by rewil at 3:04 PM on March 15, 2017 [6 favorites]

Because of that lack of clarity, the five drivers have won their lawsuit against Oakhurst, and are eligible for unpaid overtime.

Way to get all geeky about the Oxford comma and then totally fuck up a compound predicate.
posted by drlith at 3:04 PM on March 15, 2017 [4 favorites]

I'm always a little surprised by the way the judicial branch works out in practise. Like I get that it's their job to interpret the laws in cases like this, but when the laws are ambiguous, it comes dangerously close to MAKING laws. Why don;t decisions like this come with a mandate appended for the legislature to pass an unambiguous law covering this within X months?
posted by 256 at 3:26 PM on March 15, 2017

Why don;t decisions like this come with a mandate appended for the legislature to pass an unambiguous law covering this within X months?
Because case law is A Thing.
posted by agentofselection at 3:38 PM on March 15, 2017 [2 favorites]

Why don;t decisions like this come with a mandate appended for the legislature to pass an unambiguous law covering this within X months?

Because giving the judiciary the power to command legislature like that would certainly be the judiciary making laws, not to mention the practical problems with this idea.

As it is, the legislature is free to change the law tomorrow if they want. That's up to them, but until they do we have case law in the form of decisions like these to guide courts in similar future circumstances.
posted by Sangermaine at 3:45 PM on March 15, 2017 [7 favorites]

Why don;t decisions like this come with a mandate appended for the legislature to pass an unambiguous law covering this within X months?

I think you're overestimating the ease of both writing an "unambiguous" law, and mandating that a legislative body do so.
posted by thelonius at 3:46 PM on March 15, 2017 [3 favorites]

I am so for the Oxford comma and pedantry in general, but I couldn't read this and focus on the grammar pedantry because the actual content is too perplexing and awful.

Can someone explain why people who can or preserve food, etc. etc. aren't eligible for overtime?

And why the drivers would even want unpaid overtime?
posted by If only I had a penguin... at 3:51 PM on March 15, 2017 [1 favorite]

I approve of this reasoning and ruling.
posted by Thorzdad at 4:01 PM on March 15, 2017

Also a legislature would still have to agree on a law. As we see in Congress, many times they simply can't agree on anything (budgets, etc). There's no way to "force" a compromise. So they would still need to provide a default ruling in the case the legislature can't agree --- which ends up being the same thing, since in this case the legislature still has the opportunity to pass a new law clarifying/changing the requirement.
posted by thefoxgod at 4:38 PM on March 15, 2017 [1 favorite]

And why the drivers would even want unpaid overtime?

I can't tell if you're making a joke about ambiguous phrasing, but it means the work they have done outside their contracted hours and for which they are owed wages at a higher than usual rate of pay, but for which they had - prior to this lawsuit - only been paid at the standard rate. I.E. the overtime wages were still unpaid. They're not fighting for the right to work extra hours for free!
posted by the latin mouse at 5:19 PM on March 15, 2017 [1 favorite]

I really did read it as sounding like they were trying to work either for free or for their standard rate.
posted by If only I had a penguin... at 5:22 PM on March 15, 2017 [1 favorite]

I've never understood why people don't like the Oxford comma. Even if you don't like using it all the time it definitely has a use.

If only I had a penguin...: The only non-awful guess I can come up with is that this is an old provision that's meant to address circumstances where it was a more common pattern that intermittent overtime required when a particular harvest generated a large crop that then needed immediate processing, instead of a situation where it's a chronic condition of employment.

And I'm going to check on that guess now.

The law in question is Maine Revised Statutes Title 26: LABOR AND INDUSTRY; Chapter 7: EMPLOYMENT PRACTICES; Subchapter 3: MINIMUM WAGES; §664. Minimum wage; overtime rate

Apparently Maine is creating legislative histories, indexed by topic, and they include the minimum wage law where we find the overtime provisions. Which makes life easier.

The minimum wage law was passed in 1959. It excludes individuals engaged in commercial fishing and agriculture from the definition of employee.

We first get the wording from the article here in 1965, when the overtime provision is enacted, but does not apply to:

the canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or dis-tribution of herring as sardines, of perishable foods, of agricultural produce, and meat and fish products, nor to the canning of perishable goods, nor to nurs-ing homes and hospitals.

This is interesting; because the way this is structured is quite clear. It's a list of activities which modifies a list of goods, if you do the activities to the goods you don't get overtime. There's no need for the oxford comma because of the following list. (which I was pleased to note, uses the bleeding oxford comma!) The structure makes it clear that no "shipment or dis-tribution" were not meant to be separate.

The problem creeps in in the 90's (as so many others did) when, in 1995, the section is amended:

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

By cutting the list in two and restructuring it, they created the ambiguity because the list of activities is no longer obviously modifying a list of goods, but seems to stand on its own. Hence the need for interpretation.

So, what have we learned here today:

People who don't follow the style guide suck;
don't fix what ain't broke;
this is an old piece of legislation;
not a lot else really (this didn't really answer the question I was trying to answer); and
I'm somehow happy with the time I spent typing this up.
posted by Grimgrin at 6:21 PM on March 15, 2017 [9 favorites]

Just use the damn comma, for crying out loud. The "only when necessary to prevent confusion" leaves too much to chance, as "confusion" is in the eye of the beholder. E.g. no doubt, there are adults walking the street who don't know Kennedy or Stalin, but recognize that strippers often have unusual names.

Why are we still talking about this?
posted by she's not there at 6:42 PM on March 15, 2017 [7 favorites]

My guess is that there are at least a dozen working strippers named Kennedy but none at all named Stalin.
posted by jacquilynne at 8:28 PM on March 15, 2017 [4 favorites]

Also, on a very slightly more serious note, as a law student who knows a lot of grammar pedants, my FB feed is basically nothing but articles about this right now.
posted by jacquilynne at 8:31 PM on March 15, 2017 [4 favorites]

I had a knock-down, drag-out with a bunch of lawyers a few years back when I drafted a new bullying policy for our school district when I was on the school board. I was utterly adamant that it be readable by an intelligent third-grader, and by a literate but low-information parent. The district attorneys were scandalized that I wanted to render it in less-than-legal-language. I have been a believer since law school that it's possible to render legal documents in comprehensible English and avoid (much) legal jargon (some is unavoidable ... I defy you to explain "per stirpes" in simple English in less than three sentences), and that indeed it is preferable.

We spent literally two hours in a meeting on the phrase "Bullying may take various forms, including (but not limited to): [list provided in bullet points]". I wanted it as rendered there; the lawyers wanted it "Bullying may take various forms, including but not limited to [long list with frequently ambiguous commas]."

Slightly longer version, my preference:

Bullying may take various forms, including (but not limited to):
*Stalking
*Physical violence or coercion, such as punching, shoving, poking, hair-pulling, biting, aggressive tickling, and so forth
*Theft or destruction of property
*Sexual harassment or violence, including such acts as bra-strap snapping, groping, calling another student a “slut,” etc.
*Public humiliation

(It goes on for another page of examples, I just cut it off there for grammar example's sake.)

Lawyer version:

Bullying may take various forms, including but not limited to stalking, physical violence or coercion, such as punching, shoving, poking, hair-pulling, biting, aggressive tickling, etc., theft or destruction of property, sexual harassment or violence, including such acts as bra-strap snapping, groping, calling another student a “slut,” etc., public humiliation, ...

Their compromise offer was semicolons between items, which is CLEARLY BETTER than commas, but not nearly as good as a bulleted list, especially for a third grader. Anyway I spent two hours fighting over this and I won in the end. (We spent OVER AN HOUR on whether "including (but not limited to)" meant the same thing legally as "including but not limited to.") We spent additional hours on the rest of the policy, which tries to explain in simple language that even an 8-year-old can understand what constitutes bullying, what the consequences are, and what the legal procedure the district will follow is. It was HARD FUCKING WORK to make a distillation of state law and district policy comprehensible to children, but they're the ones affected by it so I thought it was really important. The lawyers fought me every step of the way, which I don't exactly fault them for because if I was the lawyer I would have fought it too -- their job was to protect the district by making the policy LEGAL and airtight, not comprehensible -- but it was still super-frustrating.
posted by Eyebrows McGee at 8:54 PM on March 15, 2017 [9 favorites]

As a diehard proponent of the Oxford comma, I am proudly standing up to be counted. To me, there is nothing optional about it. The amount of $#%@s I give, are in direct proportion to the number of times it should have been employed in writings, but wasn't. Call me prissy, pedantic, snobbish, and stuffy all you like; just be sure to include the implied pause after the penultimate epithet, please! :D
posted by Amor Bellator at 9:14 PM on March 15, 2017 [5 favorites]

If only there was some equivalent comeuppance in store for people that omit semicolons in Javascript.
posted by a snickering nuthatch at 9:38 PM on March 15, 2017 [4 favorites]

I don't like the Oxford comma in most cases but definitely give priority to the "avoid ambiguity" rule. In this case I find the gerund argument compelling as well--it's strong evidence against "distribution" being part of the list. I don't even think I'm that big a nerd.

The fact that a good gerund based argument was made to help American workers win a skirmish against their corporate overlords is what makes this really sweet though. I'd be fuming if it went the other way on a technicality. Of course I don't see why so many tasks are excluded from overtime pay.

I've never understood why people don't like the Oxford comma.

I'll stick up for it's absence since this is apparently a den of Oxford comma triumphalism.

It's an aesthetic thing for me. The comma is a separator and the word "and" is a separator. Combining them strikes me as redundant. "Jack, and Jill went up the hill" feels wrong. It doesn't start feeling correct because I add Jason and Jane to the front of the list--it actually makes it worse. It makes me want to read the last item as "and Jill" when in fact the last item is just plain old Jill.

Even if you don't like using it all the time it definitely has a use.

No argument against this. Just like you start using a semi-colon as a list separator if the comma has been taken, you need to add an Oxford comma to prevent confusion.
posted by mark k at 10:41 PM on March 15, 2017

If one really wants to disambiguate, what about "packing for shipment or packing for distribution"?
posted by thelonius at 11:48 PM on March 15, 2017 [2 favorites]

or, if that is not what is meant: ".....distribution, or packing for shipment"
posted by thelonius at 12:53 AM on March 16, 2017 [3 favorites]

(We spent OVER AN HOUR on whether "including (but not limited to)" meant the same thing legally as "including but not limited to.")

I've heard that the amount of time spent on each agenda item is inversely proportional to its importance.
posted by mikelieman at 2:26 AM on March 16, 2017

As a diehard proponent of the Oxford comma, I am proudly standing up to be counted. To me, there is nothing optional about it.

I've written computer code forever. Fuck up the syntax and it doesn't work. Items in lists are separated by commas, even if there's a conjunction attribute to the final item. The lack of an oxford comma complicates your parser by orders of magnitude.
posted by mikelieman at 2:30 AM on March 16, 2017 [7 favorites]

I've never understood why people don't like the Oxford comma. Even if you don't like using it all the time it definitely has a use.

Oh, I think organizations should adopt the serial comma. And barring significant technical issues they should also adopt IPv6 and SFTP with pubkey authentication as well, and we all know how that's going.

But, I'm getting a bit uncomfortable with the way that serial comma pedantry has replaced RTFSG (READ THE FUCKING STYLE GUIDE) as the central guiding doctrine regarding punctuation. If you don't punctuate according to TFSG, your documents should be tossed into the virtual shredder or sent back with a request to resubmit after revision. You're just making work for someone else prior to publication. In my organization, that used to be me, before we hired actual copyeditors and writers rather than trusting faculty to write everything. I still do it on occasion. I work in a Chicago shop and zealously enforce the use of a serial comma. If I worked in an Associated Press shop, I'd just as zealously enforce that style.

Almost all of the argued cases for a serial comma style are also bad in a comma-optional style and would require either the use of a serial comma, a reordering of the series, or a rewrite of the sentence to eliminate ambiguity.

Comparing human linguistic processing, which works on a semantic and higher level on gestalt principles to computer parsers is bullshit unworthy of much discussion beyond noting that it's bullshit. We evolved around verbal communication in face-to-face contexts. It's both ridiculous and ethnocentric to assume that, outside of highly technical forms, the relatively modern, Latinate comma is essential syntax.
posted by CBrachyrhynchos at 7:14 AM on March 16, 2017 [3 favorites]

I suspect that law is one of those highly technical forms that stretch the capability of the English language to communicate with clarity, and may eventually need its own supplementary notation system.
posted by CBrachyrhynchos at 7:22 AM on March 16, 2017

Almost all of the argued cases for a serial comma style are also bad in a comma-optional style and would require either the use of a serial comma, a reordering of the series, or a rewrite of the sentence to eliminate ambiguity.

PREACH. If only there were a way to get the people making the same tired jokes on Twitter to understand this point.
posted by rewil at 9:47 AM on March 16, 2017 [1 favorite]

I suspect that law is one of those highly technical forms that stretch the capability of the English language to communicate with clarity, and may eventually need its own supplementary notation system.

It might eventually happen, but turning the law even more into a magical code with runes indecipherable by untrained citizens is a terrible idea, not least because it will make the Sovereign Citizen guys actually right.
posted by Copronymus at 9:55 AM on March 16, 2017 [3 favorites]

"Jack, and Jill went up the hill" feels wrong.

It is wrong. Whether you approve of the idea or not, the Oxford comma rule doesn't apply unless you have three or more terms. (Jack and Jill would only need a comma if they were part of a threesome.)
posted by LeLiLo at 11:00 AM on March 16, 2017 [5 favorites]

And adding additional items makes the non-Oxford-comma-ed items run together in my head when I read it. That is: "Jason, Jane, JackandJill." This suggests that the last two items are related to each other in a way that the other items in the list are not. When I read a list aloud, I always put a comma-length pause where the Oxford comma goes, but when the comma is missing, I have to double-check in my head that there's not a another way to read it. (Did they actually mean, "Jason, Jane, and Jack and Jill"?)

Style guides aside, I think extra punctuation should always be added to reduce ambiguity, or to help the reader with phrasing. If it gets too cluttered, rewrite.
posted by LEGO Damashii at 9:52 AM on March 17, 2017 [4 favorites]

If someone else hadn't posted this, I was going to be the one. Pedantry, workers rights, and Oxford commas all came together on a Friday, with Oxford commas FTW - literally! (thanks Bun). Doesn't get much better than that.
posted by Pocahontas at 3:24 PM on March 17, 2017 [2 favorites]

And adding additional items makes the non-Oxford-comma-ed items run together in my head when I read it.

Well, sure, but that's presumably because you've grown used to seeing the serial comma all over the place. I'm from a country which doesn't use it* and seeing it used has the opposite effect on me. It makes the items sound Shatnered.

I don't usually bother with the serial comma and I get along fine. For every "I'd like to thank my parents, Ayn Rand and God" there's an "I'd like to thank my mother, Ayn Rand, and God." I think the real moral of the story is that people should reorder their sentences to promote clarity. For the serial comma to work as a final arbiter of meaning, it requires your audience to know:

a) what the serial comma is
b) whether you are in the habit of using it
c) whether its omission or inclusion in any given document is intentional or a typographical error

All of which is more baggage than such a tiny stroke of the pen can comfortably support. I'm as happy as the next nerd to spend an hour arguing over whether the woods' loveliness is attributable to or independent of their depth and darkness, but if you're writing an employment agreement or another legal document then a higher standard should be applied. Reorder your goddamn sentences, people!


*The famously contrarian fucks at the OUP notwithstanding.
posted by the latin mouse at 5:14 PM on March 17, 2017 [2 favorites]