BARRON, Circuit Judge.
For want of a comma, we have this case. It arises from a dispute between a Maine dairy company and its delivery drivers, and it concerns the scope of an exemption from Maine's overtime law. 26 M.R.S.A. § 664(3). Specifically, if that exemption used a serial comma to mark off the last of the activities that it lists, then the exemption would clearly encompass an activity that the drivers perform. And, in that event, the drivers would plainly fall within the exemption and thus outside the overtime law's protection. But, as it happens, there is no serial comma to be found in the exemption's list of activities, thus leading to this dispute over whether the drivers fall within the exemption from the overtime law or not.
The District Court concluded that, despite the 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. The District Court thus granted summary judgment to the dairy company, as there is no dispute that the drivers do perform that activity. But, we conclude that the exemption's scope is actually not so clear in this regard. And because, under Maine law, ambiguities in the state's wage and hour laws must be construed liberally in order to accomplish their remedial purpose, we adopt the drivers' narrower reading of the exemption. We therefore reverse the grant of summary judgment and remand for further proceedings.
Maine's wage and hour law is set forth in Chapter 7 of Title 26 of the Maine Revised Statutes. The Maine overtime law is part of the state's wage and hour law.
The overtime law provides that "[a]n employer may not require an employee to work more than 40 hours in any one week unless 1 1/2 times the regular hourly rate is paid for all hours actually worked in excess of 40 hours in that week." 26 M.R.S.A. § 664(3). The overtime law does not separately define the term, "employee." Instead, it relies on the definition of "employee" that the Chapter elsewhere sets forth.
That definition, which applies to the Chapter as a whole, provides that an "employee" is "any individual employed or permitted to work by an employer,"
The delivery drivers do not fall within the categories of workers excluded from the definition. They thus are plainly "employees." But some workers who fall within
Exemption F covers employees whose work involves the handling — in one way or another — of certain, expressly enumerated food products. Specifically, Exemption F states that the protection of the overtime law does not apply to:
26 M.R.S.A. § 664(3)(F). The parties' dispute concerns the meaning of the words "packing for shipment or distribution."
The delivery drivers contend that, in combination, these words refer to the single activity of "packing," whether the "packing" is for "shipment" or for "distribution." The drivers further contend that, although they do handle perishable foods, they do not engage in "packing" them. As a result, the drivers argue that, as employees who fall outside Exemption F, the Maine overtime law protects them.
Oakhurst responds that the disputed words actually refer to two distinct exempt activities, with the first being "packing for shipment" and the second being "distribution." And because the delivery drivers do — quite obviously — engage in the "distribution" of dairy products, which are "perishable foods," Oakhurst contends that the drivers fall within Exemption F and thus outside the overtime law's protection.
The delivery drivers lost this interpretive dispute below. They had filed suit against Oakhurst on May 5, 2014 in the United States District Court for the District of Maine. The suit sought unpaid overtime wages under the federal Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq., and the Maine overtime law, 26 M.R.S.A. § 664(3).
The delivery drivers now appeal that ruling. They raise a single legal question: what does the contested phrase in Exemption F mean? Our review on this question of state law interpretation is de novo.
The issue before us turns wholly on the meaning of a provision in a Maine statute.
Oakhurst identifies one: the Maine Superior Court's unpublished opinion in
But, a Superior Court decision construing Maine law would not bind the Maine Law Court, and thus does not bind us.
Nevertheless, the reasons that the Superior Court decision in
Each party recognizes that, by its bare terms, Exemption F raises questions as to its scope, largely due to the fact that no comma precedes the words "or distribution." But each side also contends that the exemption's text has a latent clarity, at least after one applies various interpretive aids. Each side then goes on to argue that the overtime law's evident purpose and legislative history confirms its preferred reading.
We conclude, however, that Exemption F is ambiguous, even after we take account of the relevant interpretive aids and the law's purpose and legislative history. For that reason, we conclude that, under Maine law, we must construe the exemption in the narrow manner that the drivers favor, as doing so furthers the overtime law's remedial purposes.
First, the text.
Oakhurst relies for its reading in significant part on the rule against surplusage, which instructs that we must give independent meaning to each word in a statute and treat none as unnecessary.
Oakhurst also relies on another established linguistic convention in pressing its case — the convention of using a conjunction to mark off the last item on a list.
Oakhurst acknowledges that its reading would be beyond dispute if a comma preceded the word "distribution" and that no comma is there. But, Oakhurst contends, that comma is missing for good reason. Oakhurst points out that the Maine Legislative Drafting Manual expressly instructs that: "when drafting Maine law or rules, don't use a comma between the penultimate and the last item of a series."
If no more could be gleaned from the text, we might be inclined to read Exemption F as Oakhurst does. But, the delivery drivers point out, there is more to consider. And while these other features of the text do not compel the drivers' reading, they do make the exemption's scope unclear, at least as a matter of text alone.
Consistent with the drivers' contention, Exemption F does use two different words ("shipment" and "distribution") when it is hard to see why, on Oakhurst's reading, the legislature did not simply use just one of them twice. After all, if "distribution" and "shipment" really do mean the same thing, as Oakhurst contends, then it is odd that the legislature chose to use one of them ("shipment") to describe the activity for which "packing" is done but the other ("distribution") to describe the activity itself.
The drivers' argument that the legislature did not view the words to be interchangeable draws additional support from another Maine statute. That statute clearly lists both "distribution" and "shipment" as if each represents a separate activity in its own right.
Next, the drivers point to the exemption's grammar. 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.
Thus, the drivers argue, in accord with what is known as the parallel usage convention, that "distribution" and "shipment" must be playing the same grammatical role — and one distinct from the role that the gerunds play.
By contrast, in violation of the convention, Oakhurst's reading treats one of the two non-gerunds ("distribution") as if it is performing a distinct grammatical function from the other ("shipment"), as the latter functions as an object of a preposition
Finally, the delivery drivers circle back to that missing comma. They acknowledge that the drafting manual advises drafters not to use serial commas to set off the final item in a list — despite the clarity that the inclusion of serial commas would often seem to bring. But the drivers point out that the drafting manual is not dogmatic on that point. The manual also contains a proviso — "Be careful if an item in the series is modified" — and then sets out several examples of how lists with modified or otherwise complex terms should be written to avoid the ambiguity that a missing serial comma would otherwise create.
Thus, the drafting manual's seeming — and, from a judge's point of view, entirely welcome — distaste for ambiguous lists does suggest a reason to doubt Oakhurst's insistence that the missing comma casts no doubt on its preferred reading. For, as the drivers explain, the drafting manual cannot be read to instruct that the comma should have been omitted here if "distribution" was intended to be the last item in the list. In that event, the serial comma's omission would give rise to just the sort of ambiguity that the manual warns drafters not to create.
To address this anomaly, the drivers cite to Antonin Scalia & Bryan Garner,
The text has, to be candid, not gotten us very far. We are reluctant to conclude from the text alone that the legislature clearly chose to deploy the nonstandard grammatical device of asyndeton. But we are also reluctant to overlook the seemingly anomalous violation of the parallel usage canon that Oakhurst's reading of the text produces. And so — there being no comma in place to break the tie — the text turns out to be no clearer on close inspection than it first appeared. As a result, we turn to the parties' arguments about the exemption's purpose and the legislative history.
Oakhurst contends that the evident purpose of the exemption strongly favors its reading. The whole point of the exemption, Oakhurst asserts (albeit without reference to any directly supportive text or legislative history), 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.
Oakhurst then goes on to argue that legislative history supports this supposition about what the legislature must have intended in crafting the exemption. Oakhurst points out that the overtime law, which was enacted in 1965, piggybacks on the definition of "employee" set forth in the wage and hour law, which had been enacted four years earlier. Oakhurst then notes that this pre-existing definition of "employee" contained a carve-out that excluded workers involved in the handling of "aquatic forms of animal and vegetable life" but that in all other respects looks a lot like what became Exemption F. In particular, that carve-out applied to workers "employ[ed] in loading, unloading or packing ... for shipment or in propagating, processing (other than canning), marketing, freezing, curing, storing or distributing" various "aquatic forms of animal and vegetable life." P.L. 1961, ch. 277, § 3(F).
Oakhurst thus argues that Exemption F clearly was intended to expand upon the existing carve-out by adding activities (such as "canning") and goods (namely, meats, vegetables, and "perishable foods" more generally). And, for that reason, Oakhurst contends that it makes no sense to read Exemption F, as the delivers drivers do, to have deleted an activity — "distributing" — that the carve-out had included.
We are not so sure. Any analysis of Exemption F that depends upon an assertion about its clear purpose is necessarily somewhat speculative. Nothing in the overtime law's text or legislative history purports to define a clear purpose for the exemption.
Moreover, even if we were to share in Oakhurst's speculation that the legislature included the exemption solely to protect against the possible spoilage of perishable foods rather than for some distinct reason related, perhaps, to the particular dynamics of certain labor markets, we still could not say that it would be arbitrary for the legislature to exempt "packing" but not "distributing" perishable goods. The reason to include "packing" in the exemption is easy enough to conjure. If perishable goods are not packed in a timely fashion, it stands to reason that they may well spoil. Thus, one can imagine the reason to ensure that the overtime law creates no incentives for employers to delay the packing of such goods. The same logic, however, does not so easily apply to explain the need to exempt the activity of distributing those same goods. Drivers delivering perishable
Of course, this speculation about the effect that a legal requirement to pay overtime may or may not have on increasing the risk of food spoilage is just that. But such speculation does make us cautious about relying on what is only a presumed legislative purpose to generate a firm conclusion about what the legislature must have intended in drafting the exemption.
Moreover, insofar as the legislative history does shed light on that purpose, it hardly supports Oakhurst's account in any clear way. Significantly, Exemption F does not simply copy the language from the carve-out in the 1961 definition of "employee" that bears on whether "distribution" is an exempt activity. Instead, the legislature made some seemingly significant changes to the language of that carve-out — changes that Oakhurst overlooks.
The relevant language in the 1961 definition of "employee" reads: "employment in the ... packing of such products for shipment" and "in ... distributing" the products. By using two prepositions, "for" and "in," the text of that carve-out clearly separated the activities of packing products for shipment and of distributing those products, with the consequence that each activity was plainly excluded from the definition of "employee." Exemption F, however, deletes the second preposition, "in," and thereby strips the new language of the clarity of the old with respect to whether the activity of "distribution" is a stand-alone exempt activity or not. And Exemption F also changes the word "distributing" to the word "distribution," and thereby makes the activity of "distribution" parallel in usage to "shipment," which, of course, modifies the exempt activity of packing and does not name an exempt activity on its own.
If Oakhurst's understanding of the legislative history were right, then there would have been no reason for the legislature to have made these revisions. After all, these revisions change the old language in ways that only serve to sow doubt as to whether the activity of "distributing" that plainly had been excluded from the definition of "employee" was intended to name a standalone, exempt activity in Exemption F.
Moreover, the legislature actually revised the 1961 definition of "employee" just months after enacting the overtime law and thus Exemption F. And the legislature made that revision in a manner that runs contrary to Oakhurst's account. For while the 1961 version of the definition of "employee" excluded workers engaged in "packing ... for shipment" and "in ... distributing" "aquatic animal and vegetable life" products,
Of course, Exemption F, unlike this revised version of the carve-out from the definition of "employee," refers not just to "packing," or even just to "packing for shipment." It refers to "packing for shipment or distribution." But if Exemption F is indeed modeled on the 1961 definition of
To be clear, none of this evidence is decisive either way. It does highlight, however, the hazards of simply assuming — on the basis of no more than supposition about what would make sense — that the legislature could not have intended to craft Exemption F as the drivers contend that the legislature crafted it. Thus, we do not find either the purpose or the legislative history fully clarifying. And so we are back to where we began.
We are not, however, without a means of moving forward. The default rule of construction under Maine law for ambiguous provisions in the state's wage and hour laws is that they "should be liberally construed to further the beneficent purposes for which they are enacted."
Oakhurst counters that this default rule of construction does not apply when the question concerns whether a wage and hour law means to create an exemption at all. Rather, Oakhurst argues, the rule applies only when the issue concerns the scope of an exemption that does exist.
But we see no basis for so confining the application of this maxim of Maine law.
Specifically, the defendants in that case were challenging a ruling that various corporate and partnership entities controlled by a single family — collectively known as Funtown USA — constituted a single "employer." 527 A.2d at 1297-99. That designation mattered because it meant that overtime would have to be paid to any employee who worked forty hours a week for Funtown USA as a whole, even if the employee did not work that many hours for any one of Funtown USA's various entities. The defendants contended "that the `joint employer' concept is foreign to Maine law, and is not set forth or described in any state statute" and thus that "once it is established that the entities are legally distinct and not shams, the inquiry should end." 527 A.2d at 1299.
The Superior Court in
To be sure, once
Given that the delivery drivers contend that they engage in neither packing for shipment nor packing for distribution, the District Court erred in granting Oakhurst summary judgment as to the meaning of Exemption F. If the drivers engage only in distribution and not in any of the standalone activities that Exemption F covers — a contention about which the Magistrate Judge recognized possible ambiguity — the drivers fall outside of Exemption F's scope and thus within the protection of the Maine overtime law.
Accordingly, the District Court's grant of partial summary judgment to Oakhurst is
Oakhurst did point out at oral argument that there are provisions of Maine labor law in which a single noun is included at the end of a list predominately comprised of gerunds. But none of the provisions that Oakhurst points to have the unique structure that Exemption F would have under Oakhurst's reading, in which a contested term is grammatically parallel with some list items but not others, and yet is used, as Oakhurst contends, to serve a different grammatical function than the term to which it is parallel. Instead, Oakhurst's examples are of more garden-variety lists.
Before leaving our discussion of serial commas, we would be remiss not to note the clarifying virtues of serial commas that other jurisdictions recognize. In fact, guidance on legislative drafting in most other states and in the Congress appears to differ from Maine's when it comes to serial commas. Some state legislative drafting manuals expressly warn that the absence of serial commas can create ambiguity concerning the last item in a list. One analysis notes that only seven states — including Maine — either do not require or expressly prohibit the use of the serial comma.