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Paul Zimmerman

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Words Matter

Words, matter; and spelling and grammer does to.

For those paying attention, you are correct: the comma as placed in that first sentence does not belong; the semi-colon should be a comma; “grammer” is misspelled; the verb “does” should be “do,” and “to” needs a second “o.” Good job connecting with your inner-spell check.

Written correctly or not, this opening sentiment is especially true when it comes to legal documentation and related materials. No question about it, when drafting text that could be of legal consequence, everyone from lawyers and legislators to business owners and management must write right, and that begins with precision in both word choices and punctuation. As for the latter, the First Circuit Court of Appeals in O’Connor v. Oakhurst Dairy has much to say.

At issue in O’Connor (a 2017 decision) was the significance of a serial comma (for real, a comma). In that case, the Court determined that the lack of punctuation to mark off the last of employee activities in a list of statutory exemptions to Maine’s overtime law made it unclear whether a company’s drivers were exempt from overtime protection. The statute under the microscope in O’Connor was M.R.S.A. § 664(3)(F), which states that the protection of Maine’s overtime law does not apply to:

“The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of:

  • Agricultural produce;
  • Meat and fish products; and
  • Perishable foods.”

The parties’ dispute concerned the meaning of the words “packing for shipment or distribution.” Had a serial comma been included between the words “shipment” and “or,” the law’s meaning would have been obvious. Unfortunately, it was not, and litigation ensued. As it turned out, the First Circuit ultimately held that the drivers were entitled to overtime pay because Maine's wage and hour laws required liberal construction to accomplish their purpose. In any event, precise writing (in that instance, by the legislature) would likely have made the filing of the case in O’Connor unnecessary.

Loose drafting not only impacts the interpretation of laws. Awkward sentence structure, inappropriate word choices, improper grammar, and incorrect or missing punctuation can also affect the interpretation of a range of documents. In the employment setting, these include employee handbooks, “at-will” employment contracts, and executive compensation and severance agreements. When preparing such documentation, precise writing is critical (even a missing word or two can be extremely problematic).

Take, for example, the following provision in a severance agreement:

“The employee shall be entitled to severance compensation in an amount equal to 150% percent of the bonus paid or payable to the employee for the fiscal year immediately preceding the fiscal year in which termination occurs.”

This very language was called into question in Bukuras v. Mueller Group, LLC, another First Circuit case, this one decided in 2010. In that matter, an employee received an annual bonus plus a one-time transaction bonus, and argued that he was entitled to receive 150% of both bonuses combined upon his termination. After extensive litigation, the Court eventually sided with the employer, holding that the term “bonus” referred to the annual bonus alone, and did not include the one-time transactional bonus. Had the employer simply included the word “annual” before “bonus paid” in its severance agreement, the court would not have had to read common sense into the provision (and, more likely, the lawsuit would never have been initiated). Instead, the missing word resulted in time-consuming and expensive litigation.

The takeaway from the O’Connor and Bukuras cases, particularly for employers: choose your words (and grammar) wisely. Remember, words are free, but how you use them can be quite costly!

This blog post is not offered as, and should not be relied on as, legal advice. You should consult an attorney for advice in specific situations.