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Date: 03-17-2017

Case Style:

Kevin O'Connor, et al. v. Oakhurst Dairy; Dairy Farmers of America, Inc.

Case Number: 16-1901

Judge: Barron

Court: United States Court of Appeals for the First Circuit on appeal from the District of Maine (Cumberland County)

Plaintiff's Attorney: David Webbert, with whom Jeff Young, Carol Garvan, and Johnson, Webbert, and Young, LLP were on brief, for

Defendant's Attorney: David Schenberg, with whom Patrick F. Hulla and
Ogletree, Deakins, Nash, Smoak and Stewart, P.C. were on brief,
for appellees.

Description: 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'
- 3 -
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," id. at § 663(3). However,
the definition expressly excludes a few categories of workers
who are specifically defined not to be "employee[s]," id. at §
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 the statutory
definition of "employee" nonetheless fall outside the protection
of the overtime law due to a series of express exemptions from
- 4 -
that law. The exemption to the overtime law that is in dispute
here is Exemption F.
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:

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.

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
- 5 -
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).1 The case was referred to a
Magistrate Judge, and the parties filed cross-motions for
partial summary judgment to resolve their dispute over the scope
of Exemption F. After hearings on those motions, the Magistrate
Judge ruled that Oakhurst's reading of Exemption F was the
better one and recommended granting Oakhurst's motion. The
District Court agreed with the Magistrate Judge's recommendation
and granted summary judgment for Oakhurst on the ground that
"distribution" was a stand-alone exempt activity.2
1 The delivery drivers also made claims based on other
provisions of Maine wage and hour law. 26 M.R.S.A. § 621-A
(timely and full payment of wages); id. § 626 (payment of wages
after cessation of employment); id. § 626-A (penalties
provisions). These claims appear to rise or fall based on the
success of the overtime claim, so we do not consider them
2 After granting Oakhurst's motion for partial summary
judgment on the meaning of Exemption F, the District Court
dismissed all of plaintiffs' state law claims. At the same
time, the federal claims were all dismissed without prejudice.
As a result, we have appellate jurisdiction over the District
Court's order under 28 U.S.C. § 1291.
- 6 -
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. See Manchester Sch. Dist. v.
Crisman, 306 F.3d 1, 9 (1st Cir. 2002).
The issue before us turns wholly on the meaning of a
provision in a Maine statute. We thus first consider whether
there are any Maine precedents that construe that provision.
Oakhurst identifies one: the Maine Superior Court's
unpublished opinion in Thompson v. Shaw's Supermarkets, Inc.,
No. Civ. A. CV-02-036, 2002 WL 31045303 (Me. Sup. Ct. Sept. 5,
2002). In that case, the Superior Court ruled that Exemption F
"is clear that an exemption exists for the distribution of the
three categories of foods," id. at *3, as a matter of both text
and purpose, id. at *2.
But, a Superior Court decision construing Maine law
would not bind the Maine Law Court, and thus does not bind us.
See generally King v. Order of United Commercial Travelers of
Am., 333 U.S. 153, 159–62 (1948) (rejecting an unreported state
trial court decision as binding on federal courts); Keeley v.
Loomis Fargo & Co., 183 F.3d 257, 269 n.9 (3d Cir. 1999)
(finding a state trial court decision to be "at most persuasive
but nonbinding authority," with the federal court instead
- 7 -
"look[ing] to the plain language of the statute and our own
interpretation . . . in predicting how the state supreme court"
would rule). Moreover, the Superior Court's decision in
Thompson was appealed to the Maine Law Court, which declined to
follow the Superior Court's approach and instead decided the
case on different grounds altogether. See Thompson v. Shaw's
Supermarkets, Inc., 847 A.2d 406, 409 (Me. 2004).
Nevertheless, the reasons that the Superior Court
decision in Thompson gave -- even if not adopted by the Maine
Law Court -- figure prominently in the arguments that Oakhurst
now presents to us on appeal. We thus consider those reasons in
the course of our analysis, to which we now turn.
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
- 8 -
exemption in the narrow manner that the drivers favor, as doing
so furthers the overtime law's remedial purposes. See Dir. of
Bureau of Labor Standards v. Cormier, 527 A.2d 1297 (Me. 1987).
Before explaining our reasons for reaching this conclusion,
though, we first need to work our way through the parties'
arguments as to why, despite the absent comma, Exemption F is
clearer than it looks.
First, the text. See Harrington v. State, 96 A.3d
696, 697–98 (Me. 2014) ("Only if the statute is reasonably
susceptible to different interpretations will we look beyond the
statutory language . . . ."). In considering it, we do not
simply look at the particular word "distribution" in isolation
from the exemption as a whole. We instead must take account of
certain linguistic conventions -- canons, as they are often
called -- that can help us make sense of a word in the context
in which it appears. Oakhurst argues that, when we account for
these canons here, it is clear that the exemption identifies
"distribution" as a stand-alone, exempt activity rather than as
an activity that merely modifies the stand-alone, exempt
activity of "packing."
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
- 9 -
unnecessary. See Stromberg-Carlson Corp. v. State Tax Assessor,
765 A.2d 566, 569 (Me. 2001) ("When construing the language of a
statute . . . [w]ords must be given meaning and not treated as
meaningless and superfluous."). To make this case, Oakhurst
explains that "shipment" and "distribution" are synonyms. For
that reason, Oakhurst contends, "distribution" cannot describe a
type of "packing," as the word "distribution" would then
redundantly perform the role that "shipment" -- as its synonym -
- already performs, which is to describe the type of "packing"
that is exempt. See Thompson, 2002 WL 31045303 at *2 ("[I]t is
not at all clear how packing for shipment would be different
from packing for distribution."). By contrast, Oakhurst
explains, under its reading, the words "shipment" and
"distribution" are not redundant. The first word, "shipment,"
describes the exempt activity of "packing," while the second,
"distribution," describes an exempt activity in its own right.
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. See The
Chicago Manual of Style § 6.123 (16th ed. 2010) (providing
examples of lists with such conjunctions). Oakhurst notes,
rightly, that there is no conjunction before "packing," but that
there is one after "shipment" and thus before "distribution."
Oakhurst also observes that Maine overtime law contains two
- 10 -
other lists in addition to the one at issue here and that each
places a conjunction before the last item. See 26 M.R.S.A. §
664(3) ("The regular hourly rate includes all earnings, bonuses,
commissions and other compensation . . ." (emphasis added)); id.
at § 664(3)(A) (exempting from overtime law "automobile
mechanics, automobile parts clerks, automobile service writers
and automobile salespersons as defined in section 663" (emphasis
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." Maine Legislative Drafting Manual 113
(Legislative Council, Maine State Legislature 2009), ("Drafting
Manual"); see also Jacob v. Kippax, 10 A.3d 1159, 1166 (Me.
2011) (invoking the Drafting Manual to help resolve a statutory
ambiguity). In fact, Oakhurst notes, Maine statutes invariably
omit the serial comma from lists. And this practice reflects a
drafting convention that is at least as old as the Maine wage
and hour law, even if the drafting manual itself is of more
recent vintage. See, e.g., Me. Stat. tit. 26, § 663(3)(G)
- 11 -
(1965) ("processing, canning or packing"); Me. Stat. tit. 26, §
665(1) (1965) ("hours, total earnings and itemized deductions").
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.
The drivers contend, first, that the inclusion of both
"shipment" and "distribution" to describe "packing" results in
no redundancy. Those activities, the drivers argue, are each
distinct. They contend that "shipment" refers to the
outsourcing of the delivery of goods to a third-party carrier
for transportation, while "distribution" refers to a seller's
in-house transportation of products directly to recipients. And
the drivers note that this distinction is, in one form or
another, adhered to in dictionary definitions. See New Oxford
English American Dictionary 497, 1573-74 (2001); Webster's Third
New International Dictionary 666, 2096 (2002).
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
- 12 -
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. See 10 M.R.S.A. § 1476 (referring to
"manufacture, distribution or shipment"). And because Maine law
elsewhere treats "shipment" and "distribution" as if they are
separate activities in a list, we do not see why we must assume
that the Maine legislature did not treat them that way here as
well. After all, the use of these two words to describe
"packing" need not be understood to be wasteful. Such usage
could simply reflect the legislature's intention to make clear
that "packing" is exempt whether done for "shipment" or for
"distribution" and not simply when done for just one of those
3 We also note that there is some reason to think that the
distinction between "shipment" and "distribution" is not merely
one that only a lawyer could love. Oakhurst's own internal
organization chart seems to treat the two as if they are
separate activities.
- 13 -
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. See The Chicago
Manual of Style § 5.212 (16th ed. 2010) ("Every element of a
parallel series must be a functional match of the others (word,
phrase, clause, sentence) and serve the same grammatical
function in the sentence (e.g., noun, verb, adjective,
adverb)."). In accord with that convention, the drivers read
"shipment" and "distribution" each to be objects of the
preposition "for" that describes the exempt activity of
"packing." And the drivers read the gerunds each to be
referring to stand-alone, exempt activities -- "canning,
preserving . . . ."
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
- 14 -
function from the other ("shipment"), as the latter functions as
an object of a preposition while the former does not. And
Oakhurst's reading also contravenes the parallel usage
convention in another way: it treats a non-gerund (again,
"distribution") as if it is performing a role in the list --
naming an exempt activity in its own right -- that gerunds
otherwise exclusively perform.4
4 We note that the other Maine statutory list that uses
these same two words -- "distribution" and "shipment" -- does
assign each of them the same grammatical function. See 10
M.R.S.A. § 1476(2)(A)(3) (referring to "manufacture,
distribution or shipment"). And when the Maine legislature has
elsewhere listed the activity of "distribution" alongside other
activities that appear in the gerund form, it has used the
gerund "distributing." See, e.g., 9 M.R.S.A. § 5003(5) ("for
purposes of raising and distributing money"); 10 M.R.S.A. §
9021(1) ("business of manufacturing, brokering, distributing,
selling, installing or servicing manufactured housing"); 32
M.R.S.A. § 13702-A(24) ("dispensing, delivering or distributing
prescription drugs").
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. See, e.g., 26 M.R.S.A §
1043(1)(A)(1) (referencing "the raising, shearing, feeding,
caring for, training and management of" various animals); id. at
§ 1043(1)(A)(4) (referencing "hatching or processing of poultry,
transportation of poultry; grading of eggs or packing of eggs,
transportation of eggs; the processing of any meat product or
the transportation of any meat product"). Moreover, the
provisions that Oakhurst cites are not ambiguous as to whether
the non-gerund terms are in fact stand-alone list items. The
- 15 -
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. See Drafting Manual at 114.
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
provisions Oakhurst references are unambiguous, so the principle
of parallel construction -- an aid to resolving statutory
ambiguities -- would never come into play with respect to those
- 16 -
warns drafters not to create.5
Still, the drivers' textual points do not account for
what seems to us to be Oakhurst's strongest textual rejoinder:
no conjunction precedes "packing." Rather, the only conjunction
in the exemption -- "or" -- appears before "distribution." And
so, on the drivers' reading, the list is strangely stingy when
it comes to conjunctions, as it fails to use one to mark off the
5 For related reasons, the consistent omission of serial
commas in the various other statutory lists that Oakhurst points
to is not all that probative. None of Oakhurst's examples are
of lists in which the missing comma creates an ambiguity as to
what the final list item is. Thus, the omission of the serial
comma in those lists does not show the legislature would have
omitted the comma in this list, as the omission of the comma
from this list does create an ambiguity.
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. See Amy Langenfeld, Capitol Drafting:
Legislative Drafting Manuals in the Law School Classroom, 22
Perspectives: Teaching Legal Res. & Writing 141, 143-144 (2014);
see also Grace E. Hart, Note, State Legislative Drafting Manuals
and Statutory Interpretation, 126 Yale L.J. 438 (2016). Also,
drafting conventions of both chambers of the federal Congress
warn against omitting the serial comma for the same reason. See
U.S. House of Representatives Office of the Legislative Counsel,
House Legislative Counsel's Manual on Drafting Style, No. HLC
104-1, § 351 at 58 (1995) (requiring a serial comma to
"prevent[] any misreading that the last item is part of the
preceding one"); U.S. Senate Office of the Legislative Counsel,
Legislative Drafting Manual § 321(c) at 79 (1997) (same language
as House Manual).
- 17 -
last listed activity.
To address this anomaly, the drivers cite to Antonin
Scalia & Bryan Garner, Reading Law: The Interpretation of Legal
Texts (2012), in which the authors observe that "[s]ometimes
drafters will omit conjunctions altogether between the
enumerated items [in a list]," in a technique called
"asyndeton," id. at 119. But those same authors point out that
most legislative drafters avoid asyndeton. Id. And, the
delivery drivers do not provide any examples of Maine statutes
that use this unusual grammatical device. Thus, the drivers'
reading of the text is hardly fully satisfying.6
The text has, to be candid, not gotten us very far.
6 The drivers do also contend that their reading draws
support from the noscitur a sociis canon, which "dictates that
words grouped in a list should be given related meaning." Dole
v. United Steelworkers of Am., 494 U.S. 26, 36 (1990) (citation
omitted). In particular, the drivers contend that distribution
is a different sort of activity than the others, nearly all of
which entail transforming perishable products to less perishable
forms -- "canning," "processing," "preserving," "freezing,"
"drying," and "storing." However, the list of activities also
includes "marketing," which Oakhurst argues undercuts the
drivers' noscitur a sociis argument. And even if "marketing"
does not mean promoting goods or services, as in the case of
advertising, and means only "to deal in a market," see Webster's
Third New International Dictionary of the English Language 1383
(2002); see also id. (providing additional definitions,
including "to go to market to buy or sell" and "to expose for
sale in a market"), it is a word that would have at least some
potential commonalities with the disputed word, "distribution."
For that reason, this canon adds little insight beyond that
offered by the parallel usage convention.
- 18 -
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. See Berube v. Rust Eng'g,
668 A.2d 875, 877 (Me. 1995) ("Our purpose in construing a
statute is to give effect to the legislative intent as indicated
by the statute's plain language, and we examine other indicia of
legislative intent, such as its legislative history, only when
the plain language is ambiguous.").
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. See O'Connor v. Oakhurst
Dairy, No. 2:14-CV-192-NT, 2016 WL 1179252, at *5 (D. Me. Jan.
26, 2016) (Magistrate Judge's conclusion that "the purpose of
- 19 -
the exemption for employees engaged in the production and
distribution of perishable foods can only be to achieve the most
efficient possible production and delivery given the nature of
the product"). And, Oakhurst argues, the risk of spoilage posed
by the distribution of perishable food is no less serious than
is the risk of spoilage posed by the other activities regarding
the handling of such foods to which the exemption clearly does
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, §
- 20 -
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
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
- 21 -
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 food must often inevitably spend
long periods of time on the road to get the goods to their
destination. It is thus not at all clear that a legal
requirement for employers to pay overtime would affect whether
drivers would get the goods to their destination before they
spoiled. No matter what delivery drivers are paid for the
journey, the trip cannot be made to be shorter than it is.
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
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
- 22 -
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.
- 23 -
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, see Me. Laws 1961, c. 277, § 3(F), the revised version
removed the reference to "distributing" altogether, see Me. Laws
1965, c. 410, § 663(3)(G). The result was thus to draw the very
distinction between those workers who were engaged in packing
products and those workers who were engaged in distributing them
that Oakhurst contends we should presume the legislature could
not possibly have intended to make in crafting Exemption F.
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 "employee" -- as
Oakhurst contends -- then we would expect Exemption F at least
to use the gerund form of the word "distribution" in referring
to that activity. That is the form that the legislature used in
the exemption from the earlier definition of "employee" and that
the legislature has used to refer to all the other exempt
- 24 -
activities in Exemption F.
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." Dir. of Bureau of Labor
Standards v. Cormier, 527 A.2d 1297, 1300 (Me. 1987). The
opening of the subchapter of Maine law containing the overtime
statute and exemption at issue here declares a clear legislative
purpose: "It is the declared public policy of the State of Maine
that workers employed in any occupation should receive wages
sufficient to provide adequate maintenance and to protect their
health, and to be fairly commensurate with the value of the
services rendered." 26 M.R.S.A. § 661. Thus, in accord with
- 25 -
Cormier, we must interpret the ambiguity in Exemption F in light
of the remedial purpose of Maine's overtime statute. And, when
we do, the ambiguity clearly favors the drivers' narrower
reading of the exemption.
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. See, e.g., Marsuq v.
Cadete Enters., 807 F.3d 431, 438 (1st Cir. 2015) ("The burden
is on the employer to prove an exemption from the FLSA's
requirements, and the remedial nature of the statute requires
that [its] exemptions be narrowly construed against the
employers seeking to assert them." (alteration in original)
(citation omitted)); Connelly v. Franklin Mem. Hosp., 1993 Me.
Super. LEXIS 243, *3 (Me. Super. Ct. Oct. 1, 1993) ("[An]
exemption from overtime pay requirements is construed narrowly,
with employers claiming exemption having the burden of proof
that employees fit plainly and unmistakably within the
exemption."). Thus, Oakhurst contends that the rule has no
application here, as the dispute centers on whether
"distribution" is exempted, and not what constitutes
But we see no basis for so confining the application
- 26 -
of this maxim of Maine law. Cormier did not by terms set forth
that limit on the potential application of the rule that it
announced. And, in fact, Cormier itself applied the maxim to
resolve an ambiguity that did not concern the scope of an
exemption at all. Cormier instead applied it to determine
whether, for purposes of Maine overtime law, the word "employer"
should be construed to treat closely related entities operating
under common ownership as a single "employer" under 26 M.R.S.A.
§ 664(3). 527 A.2d at 1298.
Oakhurst also argues that this default rule of
construction applies only when courts apply law to facts and so
does not apply to purely legal question about whether
"distribution" describes an exempt activity or is an exempt
activity that is at issue here. But, in construing "employer,"
Cormier was not simply making -- as Oakhurst would have it -- a
factual judgment as to "whether economic reality and the
totality of the factual circumstances supports a finding that
multiple companies could be treated as one employer." Rather,
Cormier first resolved a purely legal dispute over the meaning
of "employer," and it did so with reference to this rule of
Specifically, the defendants in that case were
challenging a ruling that various corporate entities and
partnership controlled by a single family -- collectively known
- 27 -
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 Cormier ruled, however, that the
term "employer" in the overtime law did encompass the jointemployer
concept. Id. And the Maine Law Court agreed, holding
that the Superior Court's "balancing of the several factors that
resulted in its ultimate conclusion was a logical, coherent and
legally sufficient mode of analysis." Id. at 1300. And it was
in the course of embracing that legal conclusion regarding the
proper resolution of the ambiguous term "employer" that Cormier
deployed the canon: "Remedial statutes should be liberally
construed to further the beneficent purposes for which they are
enacted." Id.
To be sure, once Cormier answered the legal question
about the meaning of "employer" under § 664(3), Cormier did go
on to apply law to fact. In particular, Cormier analyzed
- 28 -
whether the particular legal entities at issue in the case were
in fact properly characterized as constituting a "joint
employer" given their ties to one another. Id. at 1301–02. But
there is no indication that, in concluding that the various
entities that comprised "Funtown USA" were in fact a joint
employer, id. at 1297-98, Cormier held that that the rule of
liberal construction may be deployed only to resolve questions
pertaining to the application of law to fact.
Because Cormier does not state the rule of liberal
construction as if it is one that may be used to resolve only
some ambiguities in Maine's wage and hour laws, and because
Cormier itself applies the rule to resolve a purely legal
question, we see no basis for concluding that we are free to
ignore this rule of construction in resolving the ambiguity that
we confront. Thus, notwithstanding the opacity of the text and
legislative history, we do not believe certification of a
question regarding the proper resolution of the ambiguity in
Exemption F would be the appropriate course. See Maurice v.
State Farm Mut. Auto. Ins. Co., 235 F.3d 7, 10 (1st Cir. 2000)
("Our practice . . . has been to refrain from certification of
state-law issues when we can discern without difficulty the
course that the state's highest court likely would follow.").
Rather, in accord with Cormier, we adopt the delivery drivers'
reading of the ambiguous phrase in Exemption F, as that reading
- 29 -
furthers the broad remedial purpose of the overtime law, which
is to provide overtime pay protection to employees.
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.

Outcome: Accordingly, the District Court’s grant of partial
summary judgment to Oakhurst is reversed.

Plaintiff's Experts:

Defendant's Experts:

Comments: Editor's Comment: Interesting case which turned on the absence of a comma.

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