A Maine dairy company has received a potentially expensive grammar lesson from the U.S. Court of Appeals for the First Circuit, which held on March 13, 2017, that the company’s delivery drivers may be eligible for up to $10 million in overtime pay, because the lack of a comma in the statute regarding exemptions from the state’s wage and hour law rendered the scope of the exemption ambiguous.

Grammarians have long disputed whether writers should include a comma before the final item in a list—the so-called “serial” or “Oxford” comma.  Opponents of the serial comma consider it superfluous.  Supporters argue that the serial comma is necessary to eliminate potential ambiguity, as in the example, “I’d like to thank my parents, Ayn Rand and God.”  Are Ayn Rand and God the writer’s parents, or are they being thanked in addition to his or her parents?  Without the serial comma, it is impossible to know.

Similarly, this case, O’Connor v. Oakhurst Dairy, arose “[f]or want of a comma” in the Maine law exempting from overtime compensation employees involved in the “canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of” various perishable goods.  Without the controversial serial comma after “shipment,” the court found it unclear whether the exemption was meant to apply to one category of employees (i.e., those who pack goods, whether for shipment or for distribution) or two (i.e., those who pack goods for shipment, and those who distribute the goods).  Because the plaintiff drivers admittedly distributed goods, but claimed they did not pack goods or engage in any of the other activities specified in the exemption, their case could only proceed if the First Circuit reversed the district court’s ruling that the exemption encompassed both packers and distributors.

In an opinion that should appeal to grammar aficionados everywhere, the First Circuit extensively analyzed the language of the statute in light of “certain linguistic conventions,” or “canons,” including: (i) the rule against surplusage, which states that no word in a statute should be treated as unnecessary; (ii) the convention of using a conjunction before the last item on a list; (iii) the parallel usage convention, which requires words performing the same grammatical function to be presented in the same form; and (iv) the use of the serial comma itself, which the Maine Legislative Drafting Manual generally disfavors, except when its omission may cause the sort of ambiguity presented here.  After engaging in this analysis, and proving unable to determine the law’s clear meaning from the statutory text or its legislative history, the court reversed the district court and held it must “adopt the delivery drivers’ reading of the ambiguous phrase . . . , as that reading furthers the broad remedial purpose of the overtime law, which is to provide overtime pay protection to employees.”

While many commentators have viewed this opinion as an ode to, in the court’s words, “the clarifying virtues of serial commas,” ultimately that is a mere subset of the three broader lessons presented by this case, principles that should prove helpful to anyone who communicates via the written word—that is, all of us.

Lesson One — Say What You Mean

Given the context of this case, the first lesson presented by the court’s analysis was likely aimed primarily at the Maine Legislature, which drafted the ambiguous statute at issue. However, it is advice that all writers would be wise to follow—avoid ambiguity.  Whether drafting a statute, a brief, an employment policy, an email, or a Tweet, use language and punctuation (including the serial comma, where necessary) deliberately, to ensure that you actually write what you intend to say.  Review the grammar rules you may have ignored since middle school, and revise your writing as frequently as necessary, to guard against any accidental ambiguities like the one in the Maine wage and hour law.  Especially for attorneys, words are our primary weapons, and it is crucial that we wield them wisely.

Lesson Two — Remember Your Goal

The second piece of advice that arises from this case is somewhat related to the first—always keep the underlying purpose of a piece of writing in mind. Much as courts seek to effectuate the legislative intent of a statute, parties to a dispute should focus on what, specifically, they are trying to accomplish.  The delivery drivers in this case did not win because of a missing comma; they won because the extra compensation they sought was consistent with the broad remedial purpose of Maine’s wage and hour law.  As an advocate, you will be more likely to succeed if you can find a way to align the outcome you or your clients seek with the societal or legislative purpose the court is seeking to advance.

Lesson Three — Be Consistent (a.k.a., Don’t Be Your Own Worst Enemy)

The third lesson drawn from this case, despite being relegated to a seemingly insignificant footnote, may be the most important—make sure all of your messaging is consistent. In this case, the dairy company argued that the statutory exemption should be read as applying to both employees involved in “packing [goods] for shipment” and employees involved in “distribution” of the goods, because “shipment” and “distribution” are synonyms, and unless “packing for shipment” and “distribution” constituted two separate exempt activities, the statute would be redundant.  The court may have been more receptive to this argument, if it hadn’t noticed that the company’s “own internal organization chart seems to treat [shipment and distribution] as if they are separate activities,” significantly undercutting the company’s argument that the two terms were synonymous and redundant.  The company probably never considered the fact that its own organizational chart could be used against it, but any such inconsistency in a party’s messaging, even in a seemingly unrelated context like an org chart, may ultimately prove fatal to a contradictory legal claim the party seeks to assert sometime in the future.  Accordingly, especially for corporate entities, it is crucial to keep a single consistent and coherent viewpoint in mind when drafting any sort of company messaging, to prevent any inconsistencies from being used against the company at a later date.

Conclusion — It’s Not About the Comma

Contrary to the extensive media coverage of the “comma case,” this case offers a far broader lesson than “always use a serial comma.” Instead, the First Circuit’s opinion presents three fundamental principles that should apply in every context where the written word may prove determinative.  In essence, the opinion is a dissertation on the virtues of clarity in writing—a lesson that may cost Oakhurst Dairy up to $10 million, but which has been made available to the rest of us, free of charge.

On October 15, 2015, Epstein Becker Green hosted its 34th Annual Workforce Management Briefing, which featured senior officials from the U.S. Department of Labor and the Equal Employment Opportunity Commission.  This year’s briefing boasted a record setting attendance, including industry leaders, general counsel and senior human resources professionals, many of whom attended the briefing workshop, Wage and Hour Compliance: You Are Not Exempt.

The Wage and Hour workshop featured three of Epstein Becker Green’s wage and hour practice attorneys — Michael Kun, Patrick Brady and Jeffrey Ruzal — who addressed pressing wage and hour issues that face workforce management today.

Much of the program was dedicated to a discussion of two recent U.S. Department of Labor initiatives.  On July 6, 2015, the DOL published a Notice of Proposed Rulemaking that, when finalized, would extend overtime protection to approximately five million white-collar workers who are currently not entitled to overtime pay because they are exempt from the FLSA.  Shortly thereafter, on July 15, 2015, the DOL’s Wage and Hour Administrator David Weil issued Administrator’s Interpretation No. 2015-1, concluding that many employers throughout the country are improperly classifying workers as independent contractors.  Mike, Pat and Jeff discussed the DOL’s initiatives at length by dissecting the interpretation and proposed regulations, explaining the potential ramifications of non-compliance, and offering potential business-friendly solutions.

In addition to the DOL’s recent initiatives, the program focused on other significant wage and hour issues, including intern misclassification, tip-related issues, and bonus classification.  You can access the workshop’s slide presentation here.

Judging by the rampant increase in the number of wage and hour lawsuits and investigations being brought by the government and private plaintiffs, we expect that we will be reprising our program at the workforce management briefing next year.


by Jordan Schwartz 

Recently, a client informed me that an employee who had been terminated several months prior had failed to cash his final paycheck, resulting in it becoming expired. 

This client was well aware of its obligations under federal and state law to pay its employees their full wages upon completion of their employment. Thus, the client asked whether, by issuing the check and providing a reasonable time frame for it to be cashed or deposited, it had satisfied its wage payment obligations under applicable law.

As an initial matter, the answer to this question depends on state law, as this issue is not specifically covered by the federal Fair Labor Standards Act. While different state laws contain various nuances, the general law in most states is that the employee is ultimately responsible for converting his paycheck into readily usable funds. If, however, an employee fails to cash or deposit his paycheck after a certain amount of time, the state’s statute of limitation on unclaimed funds may expire, which would result in the employer possessing “unclaimed property.” 

While an employer may initially be excited over this “good fortune,” possessing unclaimed property in the form of unclaimed wages is not as glamorous as it sounds. Indeed, despite the former employee’s delinquency in failing to cash or deposit the paycheck, the employer cannot simply pocket the unclaimed funds. 

Rather, an employer who possesses such unclaimed property typically would be subject to both a number of reporting requirements (including sending written notice to the supposed owner of the unclaimed property) and the obligation to turn over such property to the state. Significant penalties would apply to employers who fail to comply with these requirements.

Thus, if, as an employer, you find yourself in the possession of a former employee’s unclaimed paycheck, it would be prudent to make a reasonable effort to track down and/or locate that employee and reissue the check to make him whole. In so doing, you would avoid any unnecessary involvement with the state treasury department involving the unclaimed funds. 

Moreover, by ensuring payment of a former employee (despite his failure to cash or deposit the prior check that was already issued), you would reduce the risk of legal exposure for failure to pay wages under applicable law. 

by Michael D. Thompson

President Obama announced in his State of the Union address that he will issue an executive order increasing the minimum wage for employees of federal contractors to $10.10 per hour. The executive order is undoubtedly a prelude to a push for Congressional support of an increase in the Fair Labor Standards Act minimum wage of $10.10 per hour.

“If you cook our troops’ meals or wash their dishes, you should not have to live in poverty,” President Obama said. 

According to the Obama administration, the increase would affect more than 2 million employees. 

Many of those employees, however, are already paid in excess of $10.10 per hour under statutes such as the Service Contract Act and the Davis-Bacon Act. Those acts require certain federal contractors and subcontractors to pay workers no less than the locally prevailing wages and fringe benefits for similar projects in the area.

Accordingly, as the President’s remarks might suggest, the impact of the wage increase is generally limited to employees in food service, cleaning/maintenance and laundry occupations. For example, at Fort Bragg (the nation’s largest military base), dishwashers earn only $7.87 per hour and would be impacted by the increase in the minimum wage, but cooks already earn from $10.41 to $12.40 per hour. Similarly, occupations such as receptionist, refuse collector and school crossing guard are already compensated in excess of $10.10 per hour.

Indeed, of the 392 occupations receiving standard Service Contract Act wage determinations for Cumberland County, North Carolina (the headquarters of Fort Bragg), only 26 — or 6.6% — have been paid at rates below the new minimum wage.

by Brian Steinbach

On January 15, 2014, the Mayor of the District of Columbia signed a bill increasing the DC minimum wage to $11.50, in 3 steps by July 1, 2016. This caps off a recent coordinated effort in DC and suburban Maryland’s Montgomery and Prince George’s counties to increase the regional minimum wage to $11.50.  However, each jurisdiction phases in the increase in different amounts and at different times, starting July 1, 2014.  Employers in the D.C. area will now face several different local minimum wage requirements in addition to those imposed by federal law. They will have to be careful to ensure that each of their employees is paid the proper wage for the area in which they work.

Under the D.C. law, the general minimum wage for employees working in D.C., currently $8.25, will increase to $9.50 on July 1, 2014; to $10.50 on July 1, 2015; and to $11.50 on July 1, 2016. Thereafter, it will be adjusted on each July 1 in proportion to any increase in the CPI-U for the Washington Metropolitan Statistical Area published by the BLS, rounded to the nearest nickel. The D.C. law also added new quarterly reporting requirements for employers who take the tipped credit and provides for random reporting audits, but makes no change in the current $2.77 minimum wage for tipped employees.

The Prince George’s County law increases the minimum wage for employees working for any employer in the county, currently under federal and state law set at $7.25, to $8.40 on October 1, 2014; to $9.55 on July 1, 2015; to $10.25 on October 1, 2016; and to $11.50 on October 1, 2017. However, the law exempts individuals under the age of 19 who are employed not more than twenty hours in a week. The law also provides for the minimum for tipped employees to be calculated in the same manner as under state law, which allows tips to be included as up to half of the minimum wage.

The Montgomery County law increases the minimum wage for employees working in the county for the county or for non-governmental employers with two or more employees in the County, also currently under federal and state law set at $7.25, to $8.40 on October 1, 2014; to $9.55 on October 1, 2015; to $10.75 on October 1, 2016; and to $11.50 on October 1, 2017. As in Prince George’s County, the law exempts individuals under the age of 19 who are employed not more than twenty hours in a week. However, it allows a tip credit of half the regular minimum wage under state law, currently $3.63 (half of the higher of the state or federal minimum wage).

In addition, there are bills currently pending in the Maryland legislature that would increase the state-wide minimum wage, and efforts are underway or have already passed to increase the minimum in other states.

by Michael Kun

We heard you loud and clear.  You’d like our EBG wage-hour app, currently available for use on Apple products, to be available on Android devices, too.

Consider it done.  Or, more accurately, almost done.

The Android version of the EBG wage-hour app will be available for download in early 2014.

And, yes, it will be free.

Look for more details here.

In the meantime, if you do not have an Apple device, PDF versions of our federal and state wage-hour guides, as well as other materials, remain available on our webpage.