‘For want of a comma,’ dairy delivery drivers enjoy overtime protections under Maine law
In a dispute involving the interpretation of Exemption F of Maine’s overtime law, the First Circuit adopted the interpretation proposed by dairy delivery drivers, finding they were not exempt from the state law’s protections. A district court had concluded that, despite an absent comma, the Maine legislature unambiguously intended for the last term in the exemption’s list of activities to identify an exempt activity in its own right. However, the appeals court found that the exemption’s scope actually was not so clear in this regard, and that under Maine law, ambiguities in the state’s wage and hour laws must be construed liberally in order to accomplish their remedial purpose. Because the drivers engaged in neither packing for shipment nor packing for distribution, the district court erred in granting the employer summary judgment as to the meaning of Exemption F (O’Connor v. Oakhurst Dairy, March 13, 2017, Barron, D.).
Under the definition of “employees” in Maine’s wage and hour law, certain categories of workers are specifically excluded from coverage. Delivery drivers for a dairy do not fall within the categories of workers excluded from the definition. Still, some workers who fall within the statutory definition of “employee” nonetheless fall outside the protection of the overtime law due to a series of express exemptions from that law. Exemption F covers employees whose work involves the handling of certain, expressly enumerated food products.
Overtime exemption. Exemption F provides that the protection of the overtime law does not apply to: 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 parties disputed the scope of Exemption F due to the fact that no comma precedes the words “or distribution.” The delivery drivers argued that they fell outside Exemption F, so that Maine’s overtime law protected them. They pointed out that although they handled perishable foods, they did not engage in packing them. However, the employer countered that because the drivers engaged in the “distribution” of dairy products, which are “perishable foods,” they fall within Exemption F and thus outside the overtime law’s protection.
Stand-alone activity. When the drivers filed suit seeking unpaid overtime wages under the FLSA and the Maine overtime law, a federal magistrate judge ruled that the employer’s reading of Exemption F was the better one, and recommended granting the employer’s motion for partial summary judgment. The district court agreed, finding that “distribution” was a stand-alone exempt activity.
After taking into account relevant interpretative aids and the law’s purpose and legislative history, the First Circuit found that Exemption F was ambiguous. Accordingly, under Maine law, the appeals court was required to construe the exemption in the narrow manner that the drivers favored, as doing so furthers the overtime law’s remedial purposes.
Relying on the rule against surplusage, the employer argued that it was clear that the exemption identified “distribution” as a stand-alone, exempt activity rather than as an activity that merely modified the stand-alone, exempt activity of “packing.” Under the employer’s reading, the words “shipment” and “distribution” are not redundant. “Shipment” describes the exempt activity of “packing,” while “distribution” describes an exempt activity in its own right. The employer also relied on the convention of using a conjunction to mark off the last item on a list. It noted that there is no conjunction before “packing,” but that there is one after “shipment” and thus before “distribution.” Further, it noted that Maine statutes invariably omit the serial comma from lists, and that this practice reflects a drafting convention.
For their part, the drivers contended that the inclusion of both “shipment” and “distribution” to describe “packing” resulted in no redundancy because those activities are distinct. They argued that “shipment” refers to the outsourcing of the delivery of goods to a third-party carrier, while “distribution” refers to in-house transportation of products directly to recipients. Moreover, in other provisions, Maine law treats “shipment” and “distribution” as if they are separate activities in a list. Further, the drivers asserted, each of the terms in Exemption F indisputably names an exempt activity. Thus the drivers read the list as referring to stand-alone, exempt activities.
Missing comma. Circling back to that missing comma, the drivers acknowledged that Maine’s legislative drafting manual advises drafters not to use serial commas to set off the final item in a list. But the manual cautions: “Be careful if an item in the series is modified.” It provided examples of how lists with modified or complex terms should be written to avoid the ambiguity that a missing serial comma would create.
Purpose of exemption. The court next considered the purpose of Exemption F. The employer asserted that the whole point of the exemption is to protect against the distorting effects that the overtime law otherwise might have on employer decisions about how best to ensure perishable foods will not spoil. However, the appeals court found this assertion speculative. Insofar as the legislative history shed light on the purpose, it did not support the employer’s account. Ultimately, the court found neither the purpose nor the legislative history fully clarifying.
Ambiguous provisions. Finally, the appeals court fell back on the default rule of construction under Maine law for ambiguous provisions in the state’s wage and hour laws: that they “should be liberally construed to further the beneficent purposes for which they are enacted.” Interpreting Exemption F in light of the overtime statute’s remedial purpose, the appeals court concluded that the ambiguity clearly favored the drivers’ narrower reading of the exemption. As a consequence, given the delivery drivers’ contention that they engaged in neither packing for shipment nor packing for distribution, the district court erred in granting the employer summary judgment as to the meaning of Exemption F.