Lack of Oxford Comma Could Cost Maine Company Millions in Overtime Dispute
nytimes.com
nytimes.com
This is not the case. There is a statute that does not have a comma where one might be, and the litigants fought over whether the lack of a comma toward the end of a list ought to be read in light of the Oxford comma convention or not.
And it's actually more complicated, as the last item in the list is (potentially) compound, which makes it difficult to tell whether the "and" is to be attached to the final element alone, or to be a binding of the final element and previous elements.
Not that this its uncommon for articles to have misleading headlines, but I've been surprised at the extent to which nearly every article (save this one [1], by the ever-precise law professors at the Volokh Conspiracy) have misrepresented the case (or misunderstood it?) to make it seem like a company's typo led to a million dollar loss.
1: https://www.washingtonpost.com/news/volokh-conspiracy/wp/201...
When you read the article, you see that the comma is not from a company document, but from a statute. So the "lack" is due to legislative drafting. But reading just the headline, how could one have imagined that the "lack" was due to an unnamed actor that drafted an unnamed statute?
While the implication I described is not the clearest implication, there is no way a reader could see this headline and have any clue that what really happened was:
Legislators drafted ambiguous statute and company's interpretation lost out
But that would make for a lousy headline, I suppose.
I don't consider "lacking" to have that implication. Especially not in the context of the Oxford comma, as lack of an Oxford comma is well known to be a source of ambiguity(1).
(1) https://theliteraryman.files.wordpress.com/2012/06/comma-com...
As the article illustrates, our languages are full of ambiguities. Human communication is limited in bandwidth and which features are preserved when we use lossy compression to shrink an article to a summary or title depends on priorities. For example, your suggestion:
> Legislators drafted ambiguous statute and company's interpretation lost out
emphasizes who is at fault, business or government, but loses what the dispute was (overtime pay), where the case was located (Maine), why there was ambiguity (the Oxford comma or lack thereof), and how much was at stake (millions of dollars). There's also something to be said about making it sound catchy (like the alliteration with "Maine" and "millions").
You could put all that back in, of course, but at the cost of more bandwidth consumption. And since everyone has different priorities (for example, someone else might want to know that the company was in the dairy business), there's always more to add until we reach the point where we're just reading the entire article.
So yeah, that's a good insight, but the top HN comment shouldn't be that the article's headline could be interpreted differently.
Good points, and thanks for your thoughtfulness. I agree that "misleading" could be a tad too emphatic, and I'd be open to other descriptors that might be more accurate.
Legislators drafted ambiguous statute, and company's interpretation lost out. ;)
No compiler or anyone who can read code ever had any ambiguity reading simple code.
let overtime_allowed = true unless (action in [canning, processing, preserving, freezing, drying, marketing, storing, packing_for (shipment or distribution)] of [Agricultural produce, Meat and fish products, Perishable foods])
Eventually you'll have millions of lines of code, and within those millions of lines of code there will be a bug. It's no different than writing a legal contract in English. In both cases you can only do your best to make sure there is no misunderstanding or undefined behavior, but there is always a possibility that at some point someone will find a flaw and exploit it.
Isn't that how common law already works?
The nice thing about the code commentary is that it's easier to append or modify the commentary than a code provision itself. When a provision is changed all the case law is effectively discarded, creating tremendous uncertainty. But changing the commentary is much less likely to break backward compatibility, so to speak.
Of course, the UCC is much more carefully written and reviewed than ad hoc state legislation. The commentary is a little like gilding the lily, relatively speaking.
The nice thing about code is that we can reveal bugs by executing the code and comparing the results with our expectations. Ideally, we do this with lots of testing. But even then, there's a hole in coverage and bugs make it into prod and cost someone lots of money. Which is basically what happened here.
the (i) canning, (ii) processing, (iii) preserving, (iv) freezing, (v) drying, (vi) marketing, (vii) storing, (viii) packing for shipment or (ix) distribution of: .....
As a former freelancer, being able to write a simple business agreement and explain good faith to clients was empowering. None of my clients could have afforded to compensate me for hiring a lawyer to write in legalese, and would have been put off at such lengthy contracts despite the relatively straightforward projects.
What happened here is what happens when someone with insufficient skill tries to write an L program. The language has no such thing as linting or syntax checking, so while a faulty program will always run, it will return with unexpected or absurd results. L failures tend to make C's nasal demons look positively friendly by comparison.
There's no formal spec, it's literally centuries of ad-hoc patches and fixes and revisions piled onto one another.
Worse than that, legal "code" has thousands of frequently used implementations (judges) and millions of one-time-use implementations (jurors), all of which may interpret it differently, both from each other and even from their own past versions. So if you thought writing JavaScript was bad because you have to deal with a half-dozen browser implementations and quirks...
The legal system is massively reliable. By the time something reaches an appeal court, you're already into 5th 9 territory. You can live an entire life under it, moving through it, completely surrounded by it, and never have to see it or think about it.
They can and do. Quoting the Oregon constitution:
"In all criminal cases whatever, the jury shall have the right to determine the law, and the facts under the direction of the Court as to the law, and the right of new trial, as in civil cases."
Similar measures exist in other legal jurisdictions, though it isn't universal.
> judges have a well-organised system for exception handling
I didn't suggest they don't; I suggested that two different judges can interpret the law differently.
The point here is that jurors decide on facts according to law, as instructed by a judge[0]. The judge is also asked during trial to consider legal questions -- not the jurors.
> I suggested that two different judges can interpret the law differently.
I suggested that is why there is a hierarchy of courts, with the hardest and most important ones being delegated upwards via the process of appeal.
I am, of course, not a lawyer and this isn't legal advice. I did enjoy my time in law school though. The main thing I learned is that the law is a language that resembles but is not common English. Phrases like the one you quoted have to be read in the larger context of case law and statute law.
[0] http://www.americanbar.org/groups/public_education/resources...
1. the result of multiplying fishes, as done by Jesus
2. a type of multiplication indicated by the fish symbol (see also: dot product, cross product)
3. a product intended for use by fish
4. the yearly economic value produced by fish (see also: gross national product)
[0] https://en.wikipedia.org/wiki/Controlled_natural_language
How much perfect code have you come across in your life?
The fact that this law doesn't have a second conjunction should be definitive in showing how it was meant to be interpreted.
Surely if your business is only viable with coerced labour then it isn't a viable business?
Or maybe if you need employees help to run it without pay them then they can be given a share of the business so they can benefit from the future returns that their efforts provide?
Overtime rules say that if you work overtime (and the definition of overtime varies by state), they have to pay you 1.5x your salary. In this case, they were only paying their regular salary.
No one was working for free.
edit concrete example: Blockbuster Video. Shop closed at 11, the time I stopped getting paid. At that point I had to lock up and do accounts stuff, clean, and general admin (plugging the CC machine into the phone line so it could phone home and get lists of updated cards to watch for) etc. Would usually take about half an hour ISTR.
The only time you are allowed to work unpaid overtime is if your job is considered an 'exempt' position. There are a number of rules that have to be met for a job to be considered expempt, including a high enough salary, autonomy over your work, and a few other rules as well.
When I was ready to leave, I filed a Department of Labor complaint and got a few thousand bucks.
They expected us to show up 10-15 minutes before the start of our shift to open and if we were on the later shift, they expected us to work 10-15 minutes after the end of the shift to close.
I refused to work for free.
I have never regretted losing that job.
Not worth your time, nor return on time invested.
Labor boards don't give a "stern talking to," they investigate violations of the law, issue fines, and even force companies to pay back wages, with interest, and other forms of compensation directly to employees. I just did a Google and this first thing that came up "Walt Disney Co. has agreed to provide $3.8 million in back wages to thousands of hotel- and timeshare-resort workers after the U.S. Labor Department investigated violations of minimum wage, overtime and record keeping rules."
I once reported a bank to the CPFB (not a labor board but similar) and it took 10 minutes to fill out an online form and they took care of investigating the issue for me. Ended up getting the $500 I was owed as well as an apology.
My co-workers might have gotten more out of it but since I got fired and they didn't, they should have been the ones to call.
These labor boards tend to be pretty vocal about defending the rights of employees. However, employees don't always know to invoke their help, and they don't have unlimited resources.
A company not paying wages for time that employees have worked is a pretty open-and-shut case for them to handle.
The worst part is it was probably just some shitty manager making 35k a year looking for a good year end review or a tiny bonus.
There is no way the corporate policy was unpaid overtime.
It's just as bad as taking money out of an employee's paycheck, and way more corrosive to society than petty theft.
[EDIT:] That isn't even the worst thing here. Why should any hourly worker not get time-and-a-half, just because they're doing work that makes food less perishable? Is this some ancient tradition of screwing over the hourly workers who are least likely to have any other options?
If the food spoils, no one's going to force "Maine residents" to eat it. Rather, the person who hires and schedules workers will lose some money. Next time he'll do a better job of scheduling. Or maybe he'll go out of business, and his competitor will do a better job of scheduling. Since she's not such a skinflint, she'll pay both the fishermen and the packers more. Then she'll charge the customer more, but that's OK because the low-cost competitor just went out of business. If fish costs too much, then the government can subsidize it.
Agricultural subsidies and time-and-a-half are both more widely established Chestertonian traditions than this weird northeastern "screw the packers" thing some lobbyist dreamed up. Trust the market, dude.
I bet a large amount of companies are not viable due to dumping even more tasks on employees each year and also expecting unpaid work.
Even in just the last ten years it seems so much burden has shifted to lower rung employees. I can't imagine what business will expect ten years from now.
We fight against it, and have won certain protections in the laws of some countries, but that desire is permanently a part of the human psyche! Don't ever be surprised when you see it.
Think about it from the opposite direction: a business owner could state I have never fully understood the insistence that employees get paid when they are using the restroom.
It would be insanity.
I attribute a lot of this to the unreasonable demands from some unions to create job definitions that are impractical ("driver cannot be the person who loads truck"). Fortunately, unions are becoming increasingly irrelevant.
I've volunteered at Meals on Wheels before. What I'm usually told to do is unload shipments of donated food products (crate full of mangos, crate full of granola bars, crate full of apples, etc.) and pack them into shopping bags (e.g. 1 mango into each bag, one granola bar into each bag, two apples into each bag). The shopping bags are then be given out (distribution) or picked up by other volunteers who drive them to homes (shipping).
So I think both "packing for shipping" and "packing for distribution" do seem like reasonably separate things and the law may have been wanting to list both so that someone packing for distribution wasn't excluded like could have happened if the law just said "packing for shipping".
But if you take the law's meaning as targeting "packing for shipping" and "packing for distribution" then it no longer includes people who are just doing distribution and not packing (truckers).
We know the law meant the last two things as separate anyway, though, because there's no "or" before "packing", so the end there was two separate items and not one last item. So "distribution" was meant to be a separate item and not part of "packing for". Which is the opposite argument that didn't hold up in court.
The judgment by the appeals court covers that too. Interestingly they don't side one way or the other on what the text means, instead they simply conclude that it is ambiguous. Having concluded that, they follow a separate rule which says that if there is ambiguity, then the judgment should favour the employees.
> The canning, processing, preserving, freezing, drying, marketing, storing, OR packing for shipment or distribution of ...
as the last logical entry in a list almost always starts with a conjunction.
So the intention probably was to exclude distribution from extra pay, but the phrasing was lax enough to allow this liberal interpretation.
Note that the phrase "a serial killer" could reasonably be read as an aside describing the first party. There is no silver bullet.
Wish that were true! But many news organization style guides condemn the Oxford comma, with sometimes disastrous results:
http://www.chronicle.com/blogs/linguafranca/2016/12/06/for-w...
I can't think of one, but I also find it (slightly) difficult to believe that anyone smart enough to write an article would insist on ambiguity for no good reason...
EDIT: to disambiguate my own comment: with 'when' I meant 'in cases where leaving out the comma causes ambiguity'. Personally I try to prioritize clarity so sometimes I will use an extra comma, and sometimes I won't.
"To my parents, Ayn Rand and God." (ambiguous without the comma)
"To my mother, Ayn Rand, and God." (ambiguous with the comma)
"To my mother (Ayn Rand), and God."
If it looks a little ridiculous, it's because it makes more sense this way:
"To Ayn Rand (my mother), and God."
In my honest opinion, most style guides are dogmatic to the point of stupidity. The first time I saw a non-scientific style-guide I spent a week ruminating on why people hated clear meaning so much.
I have a similar question about endnotes. Why? If you want to share a single comment, why not use a footnote? Why make the reader flip to the back of your book to read a 4 word sentence?
“To my mother, Ayn Rand, and to God.”
“To my mother, Ayn Rand; and to God.” I dedicate this book to:
My mother, Ayn Rand
And to God
I think on some level writers are a bit like programmers, in the sense that writing a really clever Perl one-liner feels great, but if you have to go back and read what you've written later Python is probably a much better option.
"To my mother—Ayn Rand—and God."
Is this flat out wrong?
That is not English. Simple as that.
I've never seen a style guide that restricted the use of dashes for appositives, especially where commas are ambiguous. Parentheses aren't necessary, just write "To my mother—Ayn Rand—and God."
"To my mother Ayn Rand, and God."
Appositive clauses require a comma. Forgetting God, you can just look at the sentence "To my mother, Ayn Rand." We put a comma there because the object of the sentence is "mother," and then we're clarifying who "mother" is. We'd only omit the comma if "Mother Ayn Rand" were a noun phrase all by itself, like "Father John."
Similarly: "This is to my arch-nemesis, Ayn Rand, who always doubted me." The commas are necessary there for the same reason.
(How did Ayn Rand enter this discussion..?)
Sorry, couldn't resist.
I have yet to see a convincing example of ambiguity in the Oxford comma that doesn't rely on other grammar or style errors or similar shadiness. Given this I think that the anti-oxforders have essentially no case.
And you can create the ambiguity just as easily without including a preposition.
But the ambiguity in "To my parents, Ayn Rand and God" is fixed by adding a comma. That is, it's the missing comma that's the problem.
This is typical of the examples I've seen.
"To God, Ayn Rand, and my mother."
The first example "to my mother, Ayn Rand, and God" could be reasonably and correctly interpreted two ways
1) this book is dedicated to two people, my mother (who is Ayn Rand), and God.
2) this book is dedicated to three people, my mother (who is not Ayn Rand), Ayn Rand, and God.
"To God, Ayn Rand, and my mother" Makes it clear the second interpretation is intended. You can't mistake my Ayn Rand for my mother.
There are other language like French without the Oxford comma and that does not lead to disastrous misunderstandings.
It is not like the English language, in general, does not have plenty of room for misinterpretation, even in every day speech. However if you look at the level of precision people need the Oxford coma for, you would have the impression you are in a project coin discussion for a small tweak in the java language causing compiler warnings.
While technically incorrect, my daily use of English has led me to start using it in Dutch as well. It often clears up sentences which are ambiguous. Interestingly enough most Dutch people find those sentences perfectly normal because they are unaware the Oxford comma exists.
And it would be really confusing if we didn't.
a, b, c and d.
Oxford comma will get marked as mistake in an essay you write in Germany, and you’ll loose points for it.
Then you can solve the remaining issues with using — instead.
In a sane world where everyone used the Oxford comma, that sentence would be clear and the last item in the sequence would be "packing (for shipment or distribution)" and the drivers would be entitled to their overtime pay. But the Maine Legislature's drafting manual recommends omitting the Oxford comma so the above sentence is ambiguous. And it's really ambiguous because either meaning could really be what the Legislature intended.
Here is the full context, with the only grammatically correct place to put the comma:
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.
edit: fixed formatting
> the drivers’ textual points do not account for what seems to us to be Oakhurst’s strongest textual rejoinder: no conjunction precedes “packing.” Rather, the only conjunction in the exemption — “or” — appears before “distribution.” And so, on the drivers’ reading, the list is strangely stingy when it comes to conjunctions, as it fails to use one to mark off the last listed activity.
To me, that seems really conclusive. I'm a little bit surprised that the court still thought the sentence was ambiguous.
That being said, omitting the conjunction is a thing that people actually do (https://en.wikipedia.org/wiki/Asyndeton), not just a grammatical error. Were I making legal arguments on this case, I would research whether this kind of asyndeton was a common construction in Maine state law.
Serial commas can also create ambiguity when they resemble appositives[1]. There’s no single rule that always only ever eliminates ambiguity for these things besides treating English like math and flooding it with parentheses.
[1] https://en.wikipedia.org/wiki/Serial_comma#Creating_ambiguit...
a, b, c, or d
a, b, {c or d}
a, b, c or {d}
a, {b or c}, dThe other meaning would have needed to be written differently, in an Oxford commaless world:
>"The canning, processing, preserving, freezing, drying, marketing, storing, packing (for shipment or distribution) or distribution of:"
/End Devil's Advocate
Since the law says not to use an Oxford comma, writing the rule should take that into consideration. I'd rule in favor of the workers because distribution is clearly not included in the Oxford commaless list which is what the drafting guidelines say to do.
I actually see no ambiguity in this case because the law should have been written without the Oxford comma in mind at all.
The homeoteleuton would have been ruined by using storage and preservation, hence it must contain meaning.
>The drivers note that each of the terms in Exemption F that indisputably names an exempt activity — “canning, processing, preserving,” and so forth on through “packing” — is a gerund. By, contrast, “distribution” is not. And neither is “shipment.” In fact, those are the only non-gerund nouns in the exemption, other than the ones that name various foods.
[0] http://law.justia.com/cases/federal/appellate-courts/ca1/16-...
Initially, I was going to say that they should evaluate the merits of the law based on the spirit of the law. But you are right, it really could go either way.
Some laws say "if there's an ambiguity, then take the interpretation that's most favourable to $PARTY". e.g. some consumer protection laws say ambiguity in prewritten sales contracts must be interpreted in the customers favour. This recognises the power imbalance between joe soap and a megacorp, and tries to address that.
I guess I don't see why that deserves an exception, but I imagine that is where they are coming from.
"Are you part of a railroad worker's retirement plan that started before 1975? Do you have income from a farm that exported to Europe or northern Mexico?"
The law seems archaic when applied to the year-round, forced-fertilization, industrialized dairy industry.
The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of:
The pattern being: A, B, C, D or E.
This does not change even if we add a spurious comma after D:
A, B, C, D, or E.
D and E are still separately listed items.
Quite simply, D or E cannot be a single list item without being preceded by some conjunction.
If the intended meaning were "packing (for shipment or distribution)" to the exclusion of "distribution", then the conjunction "and" or "or" would be required before that entire phrase:
A, B, C, D or E for X or Y.
Here the entire phrase E for X or Y (such as packing for shipment or distribution) is now the last list item (and, again, that is clear whether or not we add a spurious comma after D).
The "or" in (for shipment or distribution) belongs to this inner phrase and therefore cannot serve as the delimiting conjunction of the last list item; another delimiter is required.
Thus, the insertion of the comma makes no difference. The alternative interpretation is hard to justify, because it is based on the claim that a meaning-altering conjunction is missing, even though the existing text happens to be grammatical.
It seems clear to me that if you are listing multiple items in a sentence, a comma should separate every item in the list.
Alternatively, we could use the semi-colon for lists. This is what I do sometimes at work, especially when the items in the list may contain commas.
Why the arbitrary restriction on bulleted lists? Situations like this seem ideally suited for a simple list.
Exactly. Laws are generally drafted as lists of clauses anyway.
Any time you have categories that themselves include more than one item, an Oxford comma is really helpful.
As another point, for me the Oxford comma makes reading generally easier because it's clear where a list ends. If I see ", and" then I know what follows is the last item without having to read ahead and figure out if there's more to come.
Each has odd exceptions that have to be thought about, and each is polarizing.
In both cases I really wonder: why the insistence on adding to cognitive load?
"I'd like to thank my mother, Ayn Rand, and God"
Whereas
"I'd like to thank my mother, Ayn Rand and God"
As long as English uses commas for both apposition and list separation, there will always be ambiguity no matter which comma convention is used.
"I'd like to thank God, and my mother, Ayn Rand, ..."
> As long as English uses commas for both apposition and list separation
Then don't, if it's a concern.
"I'd like to thank my mother (Ayn Rand) and God ..."
A lack of an Oxford comma is always an ambiguity. The reverse 'problem' - which I've never encountered 'in the wild' - can be dealt with in so many ways.
Not true. The example given ("I'd like to thank my mother, Ayn Rand and God") lacks a serial comma yet is unambiguously a list of three items.
I'd say "I'd like to thank my mother Ayn Rand, and God" in that case.
I place commas where I'd pause in speech. In that situation, I wouldn't pause between "mother" and "Ayn", so no comma goes there. In order to group "mother" and "Ayn Rand" together, a comma follows.
To me it's the second sentence where the commas meaning is ambiguous. Almost like the writer is confused and two entities are its singular "mother."
"I'd like to thank my mother Ayn Rand, and God" is clearer.
There is no construction where there's no comma between 'mother' and 'ayn' AFAIK, it's just either appositive or serial.
One could reconstruct the sentence: I would like to thank my mother (who is ayn rand), and god. I would like to thank god and my mother, ayn rand. The problem isn't that other, less-ambiguous constructions exist, it is that the construction as written is ambiguous but grammatically correct. It's an operator overloading issue.
"I'd like to thank three people: my mother, Ayn Rand, and God."
More telling is the difference between the verbs ending in "ing" and those not.
canning, processing, preserving, freezing, drying, marketing, storing, and packing are the actions.
shipment and distribution relate to packing.
If distribution was supposed to be a separate activity, they would have used "distributing of" instead of "distribution of".
Law is code. The hardware is masses of people.
"The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of:"
Lets group related activities based on what workers might be doing/where they might be doing it.
If the law intended to exclude truck drivers from overtime, our groups could be:
- Canning, Processing, Preserving, Freezing, Drying (processing facility?)
- Marketing (?)
- Storing, Packing for Shipment (Warehouse)
- Distribution (On the road)
Why is one sentence trying to define rules for all those groups?
You may enumerate a set as an example of a class. You might say, "animals, such as lions, tigers and bears." If you wrote that as legalese, only lions, tigers, and bears would be considered "animals" for the purpose of the chapter.
Legalese has to be really specific with respect to lists, otherwise clever lawyers can argue their way around the holes in whatever manner best benefits their client. If you're going to specify any sub-activity of the industry in question, you have to specify all of them that you with to include for the purposes of the law.
I would say that distribution includes shipment, so "packing for shipment or distribution" is unnecessarily redundant. As such, I would prefer the interpretation of "packing for shipment, or distribution". Just as you wouldn't say "lions, tigers, tigers, and bears" you would never say "shipment or distribution" as its own clause. Distribution is shipment.
So to make it unambiguous, you could use stricter redundancy aversion: "packing for shipment or shipment".
"This comma could cost you millions, kids." :-)
https://www.dol.gov/whd/overtime/final2016/SmallBusinessGuid...
> Does the law intend to exempt the distribution of the three categories that follow, or does it mean to exempt packing for the shipping or distribution of them?
I'd say it does both. It exempts workers who package for shipment AND workers who distribute.
Discuss... :-)
Since it seems analogous, a reasonably intelligent person could assume that the sentence could read, "packing for shipment or shipment" that implies that shipment is a separate activity while packing for shipment is another activity. -- since shipping is really a subset of distribution actions.
My question is why they sued -- clarity should have been sought before engaging in the work. It wasn't like these guys were unaware of the law. They chose to read it in the most advantageous way rather than obtaining clarity before working.
And who's to say that a company can't hire lawyers to comb through old laws looking for loopholes to screw over workers?
"The pen is mightier than the sword" and all that. A little comma -- or lack thereof -- moves millions of dollars in one direction or the other.
Food for thought.
I smell a possible revolt on the part of Mr. Victor.
For me the lesson here is "use unambigious language" rather than "{always|never} use an Oxford comma".
The 29-page decision shows that the "Oxford comma" is only part of the court's interpretation of the law, and shows that the court examined several paths to reach an interpretation.
http://cases.justia.com/federal/appellate-courts/ca1/16-1901...