It is no secret that California’s wage-hour laws are complex and often raise questions that employers, employees and the courts struggle with. As we wrote here more than a year ago, faced with questions regarding California’s ambiguous “day of rest” laws, the Ninth Circuit Court of Appeals threw up its hands and asked the California Supreme Court to clarify those laws.

Among the questions to be answered was one that impacts a great many employers, particularly those in the retail and hospitality industries – does the requirement that an employee be provided a “day of rest” apply to each workweek (such that an employee could be scheduled to work 12 consecutive days over two workweeks), or does it apply to each rolling, 7-day period (such that employees could never be scheduled to work more than 6 consecutive days)?

Employers have been awaiting the Supreme Court’s decision, not just because it could require them to change their scheduling practices, but because an adverse interpretation of the “day of rest” laws could lead to a great many lawsuits and exposure over past practices.

The California Supreme Court issued its opinion in Mendoza v. Nordstrom, Inc. on Monday.  And the Court’s answers to the Ninth Circuit’s questions are ones that should please most employers.

Perhaps most importantly, the Supreme Court concluded that “a day of rest is guaranteed for each work week,” not for each rolling, 7-day period – a conclusion that would allow an employer to schedule an employee to work for as many as 12 consecutive days without violating the law (so long as the employee is not required to work 7 in one workweek).

The California answered the Ninth Circuit’s questions as follows:

  1. With regard to California Labor Code section 551, which  provides that “[e]very person employed in any occupation of labor is entitled to one day’s rest therefrom in seven,” is the required day of rest calculated by the workweek, or is it calculated on a rolling basis for any consecutive 7-day period?

As the Ninth Circuit Court noted, this question was no mere matter of semantics. One answer would lead to liability for the employer, while the other would not.

Reviewing the “manifestly ambiguous” statutory language and legislative history, the California Supreme Court concluded, “A day of rest is guaranteed for each workweek. Periods of more than six consecutive days of work that stretch across more than one workweek are not per se prohibited.”

The Court explained, “The Legislature intended to ensure employees, as conducive to their health and well-being, a day of rest each week, not to prevent them from ever working more than six consecutive days at any one time.”

  1. With regard to California Labor Code section 556, which exempts employers from providing such a day of rest when the total hours of employment do not exceed 30 hours in any week or six hours in “any” one day thereof, does the exemption apply when an employee works less than six hours in any one day of the applicable week, or does it apply only when an employee works less than six hours in each day of the week?

As the Ninth Circuit noted, the word “any” could support either interpretation. And, again, this was not a matter of semantics. The different interpretations of “any” would lead to very different liability determinations.

The California Supreme Court concluded, “The exemption for employees working shifts of six hours or less applies only to those who never exceed six hours of work on any day of the workweek. If on any one day an employee works more than six hours, a day of rest must be provided during that workweek, subject to whatever other exceptions might apply.”

  1. With regard to California Labor Code section 552, which provides that an employer may not “cause” his employees to work more than six days in seven, what does the word “cause” mean? Does it mean “force, coerce, pressure, schedule, encourage, reward, permit, or something else?”

Again, the different interpretations of “cause” would lead to different liability determinations.

The California Supreme Court concluded, “An employer causes its employee to go without a day of rest when it induces the employee to forgo rest to which he or she is entitled. An employer is not, however, forbidden from permitting or allowing an employee, fully apprised of the entitlement to rest, independently to choose not to take a day of rest.”

The California Supreme Court’s answers to these questions – particularly the first and third – will likely be greeted with much relief from employers in California, especially in the retail and hospitality industries where it is not uncommon to schedule employees to work 7 days or more in a row with shifts of varying lengths, and where employees may often swap shifts with each other such that they are working seven days or more in a row.

A new “comp time” bill that would dramatically change when and how overtime is paid to private sector employees in many, if not most, jurisdictions has passed the House of Representatives.  And unlike similar bills that have been considered over the years, this one might actually have a chance of passing. If it can get past an expected Democratic filibuster in the Senate, that is.

“Comp time” – short for “compensatory time” – is generally defined as paid time off that is earned and accrued by an employee instead of immediate cash payment for working overtime hours.

Generally speaking, public sector employers may provide “comp time” to employees.

However, putting aside various nuances and state law differences, it has long been the case that the Fair Labor Standards Act (“FLSA”) requires private sector employers to pay non-exempt employees time-and-a-half for all work performed beyond 40 hours in a workweek.  “Comp time” generally is not permissible in the private sector.

(If you want to gain a better understanding of the various nuances and state law differences, we invite you to download our free wage-hour app, available on Apple and Android devices.)

This long-standing law could change under the new bill, known as the Working Families Flexibility Act (“the Act”). (Although its title references “working families,” it does not appear that the proposed limitation would be limited to persons with families. It would apply to single persons, too.)

Although its title does not reference the FLSA or overtime, the Act would amend the FLSA to allow private sector employers to offer non-exempt employees the choice between being paid in cash for hours they work beyond 40 in a work week or accruing an hour and one-half of paid time off.  More specifically, employees could accrue up to 160 hours of “comp time” for hours worked beyond 40 in a week – again, at a rate of an hour and one-half for each overtime hour worked.

The Act has been presented as a potential benefit to employers and employees alike – employers might be able to improve cash flow by postponing payments, and employees would have greater flexibility in scheduling their work around their personal lives.

As written, the Act would not apply to all employees. Instead, it would only apply to those employees who have worked at least 1,000 hours in a 12-month period before they agree to the employer’s proposed “comp time” arrangement.  In most circumstances, it would not apply to new hires, and it would not apply to many part-timers.

As written, eligible employees would have to agree in writing to the “comp time” arrangement.  Their agreement would have to be voluntary, and they would reserve the right to revoke their agreement at any time and receive cash for their unused “comp time.” At the same time, employers could revoke the “comp time” arrangement by giving their employees 30 days’ notice of the change in the employer’s policy.

Like much legislation, the Act leaves some questions unanswered and could lead to significant litigation if passed, including collective actions. On first glance, the most significant grounds for potential litigation would be the requirement that any acceptance of a “comp time” arrangement be entirely “voluntary.” Employees may well claim that they were pressured into accepting “comp time” by management, particularly those in seasonal businesses.

But the most significant unanswered question remains the most important – will the bill get past an expected filibuster?

Since 2000, the number of wage and hour cases filed under the Fair Labor Standards Act (“FLSA”) has increased by more than 450 percent, with the vast majority of those cases being filed as putative collective actions.  Under 29 U.S.C. § 216(b), employees may pursue FLSA claims on behalf of “themselves and other employees similarly situated,” provided that “[n]o employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.”  Despite the prevalence of FLSA collective actions, the legal implications and consequences of being a “party plaintiff” in such an action continue to be addressed.  The Court of Appeals for the Third Circuit recently examined this issue, in an opinion that may prove useful to defendants seeking to obtain discovery from all opt-in plaintiffs in a putative collective action.

In Halle v. West Penn Allegheny Health System, Inc. et al., the named plaintiff filed a putative collective action alleging defendants violated the FLSA by failing to properly pay employees for work performed during meal breaks.  The district court dismissed the collective action allegations based on a related case that had previously been decided, and dismissed the opt-in plaintiffs’ claims without prejudice to re-filing individual actions.  After the named plaintiff subsequently settled his individual claim, three opt-in plaintiffs sought to appeal the district court’s decision.

The Third Circuit held the opt-in plaintiffs lacked the right to appeal, because they were no longer “parties” after the collective action claims were dismissed. The opt-in plaintiffs retained the right to pursue their own individual claims, but they had no right to pursue an appeal from the named plaintiff’s individual final judgment.  The court held that, “[b]y consenting to join Halle’s collective action, these opt-in plaintiffs ceded to Halle the ability to act on their behalf in all matters, including the ability to pursue this appeal.”

In reaching this decision, the Third Circuit engaged in an extensive analysis of the “fundamental question arising from the procedural history of this case: just what is a ‘collective action’ under the FLSA?” Unlike a class action brought under Federal Rule of Civil Procedure 23, where all putative class members are bound by the court’s ruling unless they affirmatively “opt out” of the case, “the existence of a collective action depends upon the affirmative participation of opt-in plaintiffs.”  As the Third Circuit noted, “[t]his difference means that every plaintiff who opts in to a collective action has party status, whereas unnamed class members in Rule 23 class actions do not,” prompting “the as-yet unanswered question of what ‘party status’ means in a collective action.”

The court’s analysis of this issue, while tangential to Halle’s holding, highlights the tension inherent in the language of FLSA § 216(b), which, according to the Third Circuit, “raises more questions than it provides answers.  While the first sentence [of § 216(b)] sounds in representational terms (to proceed ‘in behalf of’ others ‘similarly situated’), the second sentence refers to those who file consents as ‘party plaintiffs,’ seeming to imply that all who affirmatively choose to become participants have an equal, individual stake in the proceeding.”  This tension is particularly significant with regard to defendants’ discovery rights in a collective action.

Under Rule 33 and Rule 34 of the Federal Rules of Civil Procedure, in the absence of any court-imposed limits, a party may serve interrogatories and document requests “on any other party.”  Based on this language, and FLSA § 216(b)’s designation of individuals who opt in to a collective action as “party plaintiffs,” arguably a defendant in a collective action should be entitled to serve discovery requests on each individual who opts in to the litigation, unless the court orders otherwise.  Despite this fact, the Third Circuit noted that, “[f]requently,” discovery in collective actions “focuses on the named plaintiffs and a subset of the collective group,” a limitation that may hinder defendants’ ability to present individualized defenses that may not be applicable to all opt-in plaintiffs.

While the Third Circuit did not fully resolve the question of what it means to be a “party plaintiff,” two aspects of the Halle decision may prove helpful to defendants seeking to assert their right to obtain discovery from all opt-in plaintiffs in a collective action.  First, as noted above, the Third Circuit emphasized that each opt-in plaintiff “has party status.”  This language, when read in conjunction with the Federal Rules of Civil Procedure regarding the scope of discovery, should support defendants’ right to seek discovery from “any other party,” including all opt-in plaintiffs.

Second, in holding that the opt-in plaintiffs had no right to appeal a final judgment involving the named plaintiff, the court emphasized the importance of “the language of their opt-in consent forms, which handed over all litigation authority to named plaintiff.” The Third Circuit noted that courts often rely on the language of the opt-in consent form “to determine which rights opt-in plaintiffs delegated to the named plaintiffs.”  Based on this guidance, defendants may wish to propose including language in the opt-in consent form stating that individuals who join the collective action may be required to provide documents and information, sit for depositions, and/or testify at trial.  Such language may help demonstrate that the opt-in plaintiffs were meant to be treated as active parties to the litigation, with the same rights and obligations as named plaintiffs.

While a court may ultimately exercise its discretion to impose limits on the scope of discovery, particularly in collective actions with a large putative class, the Third Circuit’s analysis in Halle may prove useful to defendants seeking support for their argument that they should be entitled to obtain discovery from each opt-in plaintiff.

On April 3, 2017, a federal district court in New Jersey rejected the National Labor Relation Board’s (“NLRB”) D.R. Horton and Murphy Oil holdings and upheld employee waivers of class and collective arbitration. In dismissing wage and overtime claims brought by an employee of Chili’s Grill & Bar, District Judge Noel Hillman ruled that such mandatory arbitration agreements do not violate the National Labor Relations Act. Cicero v. Quality Dining, Inc., et al, 1:16-cv-05806 (April 3, 2017).

Judge Hillman noted the issue was pending before the U.S. Supreme Court, and that the Third Circuit had yet to rule on the issue. However, he also noted a related action, Joseph v. Quality Dining, in the Eastern District of Pennsylvania and a similar case decided by another federal district judge in New Jersey in Kobren v. A-1 Limousine Inc., both of which also rejected the NLRB’s position.

The NLRB has acquiesced in employers requiring employees to waive court action and agree to submit to arbitration wage and overtime and other employment related claims. However the Board has insisted that employees may not be required to arbitrate each employee’s claims separately, in individual arbitration. This, the Board contends, interferes with employees’ rights to participate in concerted activities for their mutual aid and benefit, otherwise protected under Sections 7 and 8 (a) (1) of the NLRA. In making this argument, commentators point out that the Board appears to be neglecting the second part of Section 7 which expressly reserves to employees the right to refrain from participating in any and all concerted activity.   NLRB opponents contend that waivers of class and collective arbitration are an exercise of that right.

The Supreme Court will hear arguments in the Fall in Murphy Oil and consolidated cases as to whether the NLRA prohibits an employer from requiring employees to agree to waive their rights to arbitrate employment disputes on a class or collective basis, or whether the Federal Arbitration Act favoring arbitration controls. Conservative Judge Neil Gorsuch of the Tenth Circuit has recently been sworn in as a Justice of the United States Supreme Court and will take the seat of Justice Scalia, who passed away a year ago. It remains to be seen how the Court will rule on this very important employment law issue.

Persons who live and work outside of California, including employment attorneys and the most seasoned of human resources personnel, are often confounded when they first learn about California’s Private Attorneys General Act (“PAGA”).  And, for many, the first they learn about PAGA is when a PAGA lawsuit has been filed against their company.

The same series of questions and answers often follow:

A single individual can file a lawsuit against an employer alleging that all employees were subjected to certain violations of the California Labor Code?

Yes.

Even if there are thousands of employees?

Yes.

And the employee doesn’t need to get a class certified to proceed?

Correct, because PAGA claims are considered “representative claims,” not “class claims.” (Although courts are beginning to rule more and more that PAGA claims cannot proceed to trial if they are “unmanageable.”)

And each employee can recover up to $200 per pay period for each Labor Code violation?

Yes.  They can get up to $100 for the first pay period, and $200 for each subsequent pay period.

So, hypothetically, if there were five different violations per pay period, each employee could recover up to $1000 per pay period?

Yes.

But 75% of what employees recover must then be returned to the state?

Generally, yes. It must go to the Labor and Workforce Development Agency (“LWDA”).

Why?

Because it’s part of the statute – 75% goes back to the LWDA.

But a plaintiff must arbitrate PAGA claims if he or she signed an arbitration agreement, right?

Generally, no.

But PAGA claims are covered by class action waivers, right?

To date, the courts have held that they are not covered by class action waivers.

Can PAGA lawsuits be removed to federal court under the Class Action Fairness Act?

Generally, no, because PAGA claims aren’t “class actions” per se.  They’re “representative actions.” However, if PAGA claims are filed as part of a complainat that contains class claims, they could still wind up in federal court if the class claims are removable.

Little by little, the courts have answered these and other PAGA-related questions. But at least one major question has remained – are PAGA plaintiffs entitled to a jury trial?

While the appellate courts have yet to weigh in on this issue, the trial courts are doing so as more and more PAGA cases are being filed and as they approach trial. And, to date, they all appear to conclude that a PAGA plaintiff is not entitled to a jury trial. Several of these decisions are in cases we have handled, and we are not at liberty to discuss them. However, another trial court has recently reached the same conclusion. In Espinosa v. Bodycote Thermal Processing, Inc., Judge John Shepard Wiley concluded that PAGA plaintiffs are not entitled to a jury trial because PAGA claims are equitable in nature.

While Judge Wiley’s conclusion is consistent with the other courts that have reviewed the issue, only time will tell whether the California Courts of Appeal agree when the issue is inevitably presented to them. For now, employers with operations in California should take some comfort in knowing that PAGA claims are likely to be tried to a judge and not to a jury.

A federal district court in California has weighed in on the question of whether student-athletes are employees for the purposes of minimum wage and overtime laws. And, like the courts before it, it has rejected that notion.

In Dawson v. National Collegiate Athletic Association, No. 16-cv-05487-RS (N.D. Ca. April 25, 2017), the United States District Court for the Northern District of California has joined the Seventh Circuit Court of Appeals and other courts in holding that athletes are not employees entitled to minimum wage and overtime time pay.

In Dawson, a former college football player for the University of Southern California filed a putative class action against the NCAA and the associated conference, claiming he was denied full pay for all hours worked, including overtime. Rather than applying the four factor “economic reality” test that the Ninth Circuit has adopted, the district court focused on the “true nature of the relationship.” Borrowing from the Seventh Circuit’s reasoning in Berger v. Nat’l Collegiate Athletic Ass’n, 843 F.3d 285 (7th Cir. 2016), the court concluded that “student athletic ‘play’ is not ‘work,’ at least as that term is used in the FLSA.”

The court rejected the Plaintiff’s argument that the situation differed from Berger because the students in that case were track and field athletes, while the Dawson athletes played Division I football, which generates massive revenue for schools. The court noted that Plaintiff cited no authority to support this distinction.

The court also relied on the U.S. Department of Labor’s Field Operations Handbook, which indicates that students who participate in extracurricular activities generally are not employees of the school, distinguishing them from work-study students who typically are considered employees. The court drew a distinction between sports and work-study programs, labelling the latter as programs that benefit the school. Conversely, the court felt that football exists for the benefit of the student and only in limited circumstances, for the benefit of the school.

Thus, one federal court in California has joined the parade of courts that have rejected the concept of student athletes being employees of the schools where they are engaged in sports. The issue is likely to be appealed to the Ninth Circuit. And only time will tell whether the Ninth Circuit will confirm this result or whether it will conclude that student-athletes in fact are employees.

As many will recall, the Department of Labor’s (“DOL”) overtime rule, increasing the salary threshold for overtime exemptions at the behest of the Obama administration, was scheduled to take effect on December 1, 2016. Months later, it remains in limbo before the Fifth Circuit Court of Appeal. And it apparently will remain in limbo for at least several more months.

After publication of the final overtime rule on May 23, 2016, two lawsuits were filed by a coalition of 21 states and a number of business advocacy groups, claiming that the DOL exceeded its rulemaking authority in finalizing the overtime rule. The lawsuits, which were consolidated, sought a variety of relief, including a preliminary injunction blocking the overtime rule from taking effect.

Days before the final rule went into effect, the United States District Court for the Eastern District of Texas granted Plaintiffs’ motion and issued a nationwide preliminary injunction. Prior to President Trump’s inauguration, the Department of Labor appealed the order to the Fifth Circuit. Thereafter, the DOL was granted two extensions of time to consider whether it wished to proceed with the appeal.

The most recent extension was set to expire on May 1, 2017 . Now, the DOL has requested – and the Fifth Circuit has granted – yet another 60-day extension because Secretary of Labor nominee Alexander Acosta has not yet been confirmed. In granting the extension, the Fifth Circuit continued the DOL’s deadline to file its reply brief to June 30, 2017.

This most recent extension will give additional time to the DOL to evaluate its options, which includes abandoning the appeal and any further efforts to implement and enforce the overtime rule. It is important to keep in mind, however, that even though Secretary of Labor Nominee Acosta does not appear to support the Obama administration’s plan to more than double the salary threshold, he has expressed opinions that suggest he would support updating the overtime rule to some degree, possibly increasing the salary threshold to mirror inflation. It is also important to be mindful that certain states, including New York and California, have a higher minimum salary threshold than the current federal requirement of $455 per week. We will continue to monitor and report on this important matter as it develops.

Our colleague Adriana S. Kosovych, associate at Epstein Becker Green, has a post on the Hospitality Employment and Labor blog that will be of interest to many of our readers: “Chipotle Exploits Wide Variation Among Plaintiffs to Defeat Class and Collective Certification.

Following is an excerpt:

A New York federal court recently declined to certify under Rule 23 of the Federal Rules of Civil Procedure (“Rule 23”) six classes of salaried “apprentices” at Chipotle restaurants asserting claims for overtime pay under New York Labor Law (“NYLL”) and parallel state laws in Missouri, Colorado, Washington, Illinois, and North Carolina, on the theory that they were misclassified as exempt executives in Scott et al. v. Chipotle Mexican Grill, Inc. et al., Case No. 12-CV-8333 (S.D.N.Y. Mar. 29, 2017).  The Court also granted Chipotle’s motion to decertify the plaintiffs’ conditionally certified collective action under Section 216(b) of the Fair Labor Standards Act (“FLSA”), resulting in the dismissal without prejudice of the claims of 516 plaintiffs who had opted in since June 2013.

The putative class and collective action of apprentices working in certain of Chipotle’s 2,000-plus restaurants nationwide were provisionally employed while being trained to become general managers of new Chipotle locations. The Scott action challenged Chipotle’s blanket exempt classification of the apprentice position, claiming that the duties plaintiffs actually performed during the majority of their working time were not managerial, and therefore, as non-exempt employees they were entitled to receive overtime pay. …

Read the full post here.

Tips Do Not Count Towards the Minimum Wage Unless a Worker Qualified as a “Tipped Employe"In Romero v. Top-Tier Colorado LLC, the Tenth Circuit Court of Appeals ruled that tips received by a restaurant server for hours in which she did not qualify as a tipped employee were not “wages” under the FLSA, and therefore should not be considered in determining whether she was paid the minimum wage.

Tipped Employees & the FLSA

The FLSA provides that employers may take a “tip credit” and pay employees as little as $2.13 per hour if: (i) the tip credit is applied to employees who customarily and regularly receive tips; (ii) the employee’s wages and tips are at least equal to the minimum wage, and (iii) all tips received by a tipped employee are retained by the employee or pooled with the tips of other tipped employees.

In Romero, the Tenth Circuit noted that an employee may hold both tipped and non-tipped jobs for the same employer.  In those cases, the employee is entitled to the full minimum wage while performing the job that does not generate tips.

Moreover, the Circuit Court cited to the directive in the Wage Hour Division’s Field Operations Handbook stating that, if a tipped employee spends more than 20% of his or her time performing related-but-nontipped work, then the employer may not take the tip credit for the amount of time the employee spends performing those duties.

The Plaintiff’s Claims

The plaintiff in Romero worked as a server at the defendants’ restaurant.  The defendants paid her a cash wage of $4.98 an hour, and took a tip credit to cover the gap between the cash wage rate and the federal minimum wage.

The plaintiff contended that she also worked in nontipped jobs for the defendants, and that she spent more than 20% of her workweek performing related-but-nontipped work. Therefore, she concluded she was entitled to a cash wage of at least $7.25 per hour during certain hours, and filed a lawsuit in the U.S. District Court for the District of Colorado claiming violations of the federal minimum wage.

The defendants’ moved to dismiss the complaint because plaintiff did not allege that her total weekly earnings, when divided by the number of hours worked, ever fell below the federal minimum wage rate. The District Court reasoned that a minimum wage violation is determined by dividing an employee’s total pay in a workweek by the total number of hours worked that week.  Because the plaintiff did not allege facts that would establish such a violation, the District Court granted the defendants’ motion and dismissed the complaint.

In light of that reasoning, the District Court never considered whether the plaintiff was properly considered a tipped employee.

When are Tips Considered “Wages” Paid by the Employer?

The Tenth Circuit Court of Appeals reversed the judgment of the District Court. The Tenth Circuit “assumed” that the district court correctly stated that an employer satisfies the FLSA’s minimum wage requirements so long as, after the total wage paid to each employee during any given week is divided by the total time that employee worked that week, the resulting average hourly wage is $7.25 per hour or more.

But the Tenth Circuit held that the existence of a minimum wage violation depends on the “wages” paid by an employer to an employee. The Court stated that tips are “wages” paid by an employer only when the tips are received by a worker who qualifies as a tipped employee under the FLSA.

Accordingly, the Tenth Circuit reversed the District Court’s dismissal of the plaintiff’s complaint. The Tenth Circuit directed the District Court to reconsider its ruling by examining the threshold question of whether the tips received by the plaintiff were “wages” for purposes of the minimum wage requirements of the FLSA.

What is the Impact of an Improper Tip Credit?

Assume, for example, that the plaintiff worked 40 hours in a given week, was paid cash wages of $199.20 (or $4.98 per hour) and received tips of $90.80.

If the evidence demonstrates that the plaintiff was a tipped employee at all times, she was paid wages of $290.00 (or $7.25 per hour) and the defendants did not violate the federal minimum wage.

However, the evidence could demonstrate that the plaintiff performed so much related-but-nontipped work that she did not qualify as a tipped employee at any time. As explained by the Tenth Circuit, the plaintiff’s tips would not count as wages and therefore she was paid $90.80 below the minimum wage.  The defendants could then be liable to her for that amount (as well as potential liquidated damages and attorneys’ fees).

The Tenth Circuit’s decision is consistent with the rulings of other circuit courts. Therefore, employers who are taking tip credits therefore must pay close attention to the specific requirements of the FLSA, and should not consider themselves insulated from liability merely by the fact that their tipped employees are earning more than the minimum wage.

Featured on Employment Law This Week – “For Want of a Comma.” It seems that punctuation was a key factor in a recent class action suit from a group of dairy delivery drivers in Maine.

The U.S. Court of Appeals for the First Circuit ruled that an exemption in the states overtime law is ambiguous enough to support the drivers’ overtime claim. The drivers argued that the exemption applies only to workers who pack perishable food products for distribution—and not those who actually distribute the products. On appeal, the First Circuit agreed that a missing “Oxford” comma makes the drivers’ reading of the exemption a reasonable one.

Watch the segment below and see our recent post.