From the Newsletters - Omit that Oxford comma at your peril

Confusion caused by an omitted comma led to a huge judgment against a Maine employer. What do Illinois drafting guidelines say about Oxford commas?

"The $10 million comma"
By Rex Gradeless
The Public Servant - May 2017

Democrats and Republicans. Cubs fans and Cards (or White Sox) fans. Oxford comma devotees and detractors. Is that how it is in your workplace?

Well, score one for the Oxford comma contingent. As Rex Gradeless put it in the May issue of The Public Servant, newsletter of the ISBA Government Lawyers Committee, a "recent federal appellate court decision may put the cost of a single missing comma at $10 million." Gradeless reminds us that the Oxford comma is "placed immediately before the coordinating conjunction (usually 'and' or 'or') in a series of three or more terms. For example, a list of three Illinois counties might be punctuated either as 'Hardin, Pope, and Calhoun' (with the Oxford comma), or as 'Hardin, Pope and Calhoun' (without the Oxford comma)."

The costly comma that wasn't. In the case in question, Maine truck farmers argued that they were included in a statute requiring overtime payments, while the Oakhurst Dairy argued they were excluded. The overtime statute excluded employees involved in "[t]he canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of [food products]."

"The drivers contended that this exception to the overtime law did not apply to them because the exception refers to the single activity of 'packing,' whether the 'packing' is for 'shipment' or for 'distribution,'" Gradeless wrote. But the dairy argued "the disputed words refer to two distinct exempt activities, with the first being 'packing for shipment' and the second being 'distribution.' Because the delivery drivers engage in distribution, the exception to the overtime law applies and the employees are not entitled to overtime pay."

The Maine Appellate Court "found there was enough ambiguity created by the missing Oxford comma that the court had to consider the legislative intent of Maine's overtime law," which it construed to favor the drivers - this "even though Maine's 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'" (the manual also warns to "be careful if an item in the series is modified").

Maine the outlier. In its rejection of the Oxford comma, the Maine manual is an outlier. "[S]ome state legislative drafting manuals, including Illinois, expressly warn that the absence of Oxford commas can create ambiguities concerning the last item in a list," Gradeless writes. "One analysis noted that only seven states either do not require or expressly prohibit the use of the Oxford comma."

As for Illinois, "the 2012 Illinois Legislative Drafting Manual covers the Oxford comma as follows: 'As a general rule, placing a comma before the conjunction will be clear, but omitting the comma may cause ambiguity. Because clarity is one of the cardinal virtues in drafting statutes, follow the practice of inserting a comma before the conjunction.'"

When it comes to avoiding ambiguity, in other words, Illinois is unambiguous. "[C]larity is king," Gradeless writes. "If an Oxford comma provides clarity, use it."