Dairy farmers in Maine recently learned careful word choice and grammar can make a huge financial difference. The issue was whether overtime was owed, and the court’s analysis centered on the use of a serial (Oxford) comma. Maine’s wage and hour law provides “the protection of the overtime law does not apply to: 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.” On appeal, the Court found in favor of the delivery drivers’ interpretation of the phrase “packing for shipment or distribution.” Specifically, by virtue of the missing serial comma, “packing” modified both “shipment” and “distribution.” In its discussion of Maine’s law, the Court stated, “[T]he absence of the serial comma can create ambiguity concerning the last item in a list.” This is precisely what happened here. Without the serial comma in place, the law states drivers are exempted from overtime pay for either packing for shipment OR packing for distribution. Because the drivers only engaged in distribution, they fell outside the exempt categories and must be paid overtime. And the lesson learned — it is far more expensive to short-cut your way through employment documents than to make sure they are done correctly at the outset!
Keeping with the theme of careful drafting — it is important to remember that employers can avoid turning their handbook or employment documents into an unintentional contract by including clear and conspicuous disclaimers precluding contractual liability. But how conspicuous does a disclaimer have to be?
In Tucker v. Johns Hopkins University, the Court of Special Appeals of Maryland, in an unreported opinion, found that although a disclaimer clearly stated that a manual did not create any contractual obligations, it may not have been sufficiently conspicuous to preclude contractual liability. The Court noted that the disclaimer was not presented in boldfaced or capitalized type. In addition, the disclaimer was not consistently presented with the policy in all places it appeared.
This case underscores that employers must be very careful when drafting company documents. Simply including a disclaimer is not sufficient to preclude contractual liability. In order to ensure that your company does not create any unintentional contractual obligations, the recommended best practice is to include a disclaimer in boldfaced or capitalized type, both in your company handbook, or other documents, and on any acknowledgment page provided to employees.
The contents of this Alert are for informational purposes only, and do not constitute legal advice. If you have any questions about this Alert, please contact a member of the Shulman Rogers Employment and Labor Law Group or the Shulman Rogers attorney with whom you regularly work.
Meredith “Merry” Campbell
301-255-0550
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