Much ink has been spilled recently about how the lack of a comma could cost a local dairy millions of dollars in overtime pay. Among language aficionados, much of the coverage was gloating, as in “Nyah, nyah! We TOLD you the Oxford comma should rule!”
We have also spilled much ink over that tiny punctuation mark. The comma is in some ways the wimpiest of punctuation marks, signifying a tap on the brakes rather than a full stop or sharp turn. But when it comes to its place in a series or list of items, that little comma creates enemies out of best friends.
In our view, the argument should not be over the Oxford comma, but over clarity.
In the case at hand, whether drivers were entitled to overtime pay hinged on this single passage, which specified that the people exempt from overtime were involved in:
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.
In the lawsuit, drivers for the dairy argued that they were eligible for overtime because they did not engage in “packing for shipment or distribution” of goods, only the distribution of them. A federal appeals court ruled in the drivers’ favor. As one judge wrote:
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.
To review: The comma can replace the word “and” in many circumstances. In headlines, tweets, and other condensed matter, you could write “Parents and kids enjoy snow day,” or “Parents, kids enjoy snow day,” and no one would misunderstand. In a simple series, you could write “The flag is red and white and blue,” “The flag is red, white and blue,” or “The flag is red, white, and blue,” and there is no ambiguity. That last comma before the final “and” in the series is the serial comma, also known as the Oxford (or Harvard) comma. Note that we used it before the “or” in our flag series, because that is the style of CJR.
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Newspaper style has long been to omit that final comma. But every stylebook that allows omission of the Oxford comma includes a caveat, often forgotten: Once the sentence moves beyond a simple series, that comma might be necessary for clarity.
That is the guidance of the Maine Legislative Drafting Manual. “Although authorities on punctuation may differ, when drafting Maine law or rules, don’t use a comma between the penultimate and the last item of a series,” the manual says.
But then it advises to look to see if the series is more complex, giving an example eerily like the one the court ruled on:
Be careful if an item in the series is modified. For example:
Trailers, semitrailers and pole trailers of 3,000 pounds gross weight or less are exempt from the licensing provisions.
Does the 3,000-pound limit apply to trailers and semitrailers or only to pole trailers? If the limit is not intended to apply to trailers and semitrailers, the provision should read:
Pole trailers of 3,000 pounds gross weight or less, trailers and semitrailers are exempt from the licensing provisions.
If the limit is intended to apply to all three, the provision should read:
If a trailer, semitrailer or pole trailer has a gross weight of 3,000 pounds or less, it is not required to be licensed.
For the truckers, Quartz wrote, “If lawmakers had used a serial comma, it would have been clear that distribution was an overtime-exempt activity on its own.”
But maybe not. The problem with that clause was less the lack of the serial comma than its general ambiguity. As Mary Norris wrote in The New Yorker, the clause at issue was already not kosher, mixing dairy (gerunds) and meat (nouns). Most of the items in the list were gerunds (“canning,” “processing,” “preserving,” “freezing,” “drying,” “marketing,” “storing”). Then came “packing for shipment,” which starts with a gerund and ends with a noun, but acts as a noun phrase for a single act. The confusion comes with “distribution,” also a noun. Does it belong with “shipment,” which would make the total action “packing for shipment and distribution”? Or is it an item on its own, in which case it should be another gerund, “distributing,” to match the other gerunds in the list?
The truck drivers also said that the list suffered from something called “asyndeton,” the omission of conjunctions, as in “The flag is red, (and) white, (and) blue.” Since commas separating items create asyndeton all the time, knowing when you can omit one without changing meaning is the real key here. That’s much less about whether and when to use commas than about knowing what your sentence is trying to say. At the slightest sign of ambiguity, forget punctuation and rework the sentence.
In our view, this case hinged less on the serial comma and more on a case of bad drafting. Assuming drivers were intended to be exempt from overtime, a simple fix could have been to make sure that the more complex of the items in the list, “packing for shipment,” came at the end: “The canning, processing, preserving, freezing, drying, marketing, storing, distribution or packing for shipment.” Then someone might have noticed the un-kosher “distribution” and made a gerund out of it: “The canning, processing, preserving, freezing, drying, marketing, storing, distributing or packing for shipment.” Yes, it would not be a chronological sequence, but which is more important?
We’ve become less passionate in the fight over the Oxford comma, because it’s usually not about the comma at all. It’s about intent and clarity. Use the Oxford comma or don’t use it; just make sure you’re not creating overtime work for someone to figure it all out.
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