Missing Comma Gives New Wheels to Maine Drivers’ OT Claims

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By Jay-Anne B. Casuga

Maine dairy delivery drivers—and serial comma proponents—scored a win when a federal appeals court ruled that ambiguity in a state wage-and-hour exemption revives their overtime claims ( O’Connor v. Oakhurst Dairy , 1st Cir., No. 16-1901, 3/13/17 ).

The decision is a “major ruling” in Maine, where there’s not much case law for the state overtime statute, attorney David G. Webbert of Johnson, Webbert & Young in Augusta, Maine, told Bloomberg BNA March 14.

Webbert is one of four lawyers representing about 75 dairy delivery drivers who brought federal and state overtime claims against Oakhurst Dairy and Dairy Farmers of America Inc. in the U.S. Court of Appeals for the First Circuit. The drivers alleged that they worked about 50 to 60 hours per week with no overtime pay.

Maine law provides an overtime exemption for employees whose work includes “canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment and distribution of” certain perishable foods.

The lack of a comma after “shipment” makes it unclear whether “distribution” is a standalone exempt activity or the word merely describes a type of exempt packing, the First Circuit said, discussing a number of linguistic conventions.

If “distribution” were considered an exempt activity, the drivers would lose their overtime claims because delivering dairy would qualify as “distribution.”

But the statutory text doesn’t make that clear, the court said in its March 13 ruling. And a look at the exemption’s purpose and legislative history also doesn’t resolve the ambiguity, it said.

Given the remedial purpose of the state’s overtime law, the court ultimately sided with the drivers’ stance that “distribution” modifies the word “packing” and isn’t a separate exempted activity.

Application Outside of Driver Context

The ruling, which reversed dismissal of the drivers’ claims, makes it clear that any ambiguity in Maine’s overtime provisions should be construed in favor of employees to fulfill the law’s purpose of paying workers fairly, Webbert said.

The court “pretty vigorously” applied that broad principle, which can also be used in future Maine overtime cases outside of the delivery driver context, he said.

Attorneys representing the dairy companies didn’t immediately respond to Bloomberg BNA’s March 14 request for comment.

Judge David J. Barron wrote the opinion, joined by Judges Sandra Lynch and Kermit Lipez.

Webbert, Carol J. Garvan, Jeffrey N. Young and Roberta L. de Araujo of Johnson, Webbert & Young represented the drivers. Patrick F. Hulla, Jennifer K. Oldvader, David L. Schenberg and Danielle Y. Vanderzanden of Ogletree Deakins in Kansas City, St. Louis and Boston represented the dairy companies.

To contact the reporter on this story: Jay-Anne B. Casuga in Washington at jcasuga@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

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