Clear as Mud? The Oxford Comma & Why Clarity in Contracts is Key

Last month In Maine, a class-action lawsuit raised the Oxford comma debate to new heights. Fitting as March 4th was National Grammar Day.

Typically, the debate over the Oxford comma, while passionate, is trivial. And then this happened.

A group of three dairy drivers argued they deserved overtime back pay for more than four years’ time. The company said they didn’t. After landing in the United States Court of Appeals for the First Circuit, the court sided with the drivers in a 29-page court decision, stating the guidelines for the activities that did not merit overtime pay were too ambiguous. What caused the ambiguity? The Oxford comma.

What is an Oxford comma? Also known as a serial comma, an Oxford comma is the comma that comes before “and” or “or” in a list of three or more items:

John invited the clowns, JFK, and Stalin to the party.

VS.

John invited the clowns, JFK and Stalin to the party.

That last comma, the one between JFK and Stalin, that’s the Oxford comma.

Using the Oxford comma it’s clear we have at least four people — JFK, Stalin, and two clowns. Without it, we suddenly have an interpretation where JFK and Stalin are the clowns. Legally, until now, either interpretation was valid. (More here on the Oxford comma from Strunk and White, authors of The Elements of Style, masters of clear, concise writing.)

But, back to the case.

Now, Maine law normally requires workers to be paid 1.5 times their normal rate for overtime. Reasonable. However, there are exceptions, and the following rules, according to state law, need not apply to overtime for the dairy drivers:

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.

The culprit in question is the “Packing for shipment or distribution” part of this clause. Does the law here intend to exempt the distribution of the three categories that follow? Or, is packing for shipment or distribution meant to be considered exempt?

The argument the attorneys made was that the drivers distribute the perishables, but they don’t pack them. Without the Oxford comma to delineate these tasks as separate activities — you can see how this gets a little muddy — it’s all about how you read and interpret the sentence. If that list of exemptions had included an Oxford comma after “shipment” it would have clearly marked the last items in the list as activities a driver would perform.

The cost of this legal exercise in high-stakes grammar pedantry? An estimated $10 million.

How could this have been avoided?

Despite your best efforts to dot every “i” and cross every “t,” without rigorous approval workflows mistakes can happen. Which is why it’s crucial to build approval workflows into all contract negotiations, signatures, and renewals. Having the right second (or third, fourth, fifth) set of eyes is a best practice to contract creation, and a key benefit to a comprehensive contract management platform. Instead of that Word Doc or notepad you keep with your approvers names on it to cross off, a built-in approval workflow is automated, and prohibits a contract from advancing until the approval workflow has been executed exactly as defined by management.

Another hotspot of legal trouble? Version control. When you create contracts you likely end up with multiple versions through edits and negotiations. Maybe someone had included that Oxford comma…. If you are emailing or faxing these documents back and forth, there’s a likelihood one party is working off a slightly–or even drastically–different version. Sales teams struggle with this consistently, but the legal department isn’t immune either.

The ability to negotiate from within the contract and quickly see all edits and comments ensures you have visibility into your contract negotiations, and that everyone is on the same page.

Approval workflows and version control make sure you have 100% compliance, 100% of the time.

Contract language, like your contract management platform, should be clean, simple, and clear. Check your contract drafting guidelines, because that little Oxford comma could make all the difference.

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