United States Court of Appeals
For the First Circuit
No. 16-1901
KEVIN O'CONNOR; CHRISTOPHER O'CONNOR; JAMES ADAM COX; MICHAELFRASER; ROBERT MCNALLY,
Plaintiffs, Appellants,v.
OAKHURST DAIRY; DAIRY FARMERS OF AMERICA, INC.,
Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF MAINE[Hon. Nancy Torresen, Chief U.S. District Judge]

BeforeLynch, Lipez, and Barron,
Circuit Judges.

David G. Webbert, with whom Jeffrey Neil Young, Carol J.
Garvan, and Johnson, Webbert, and Young, LLP were on brief, forappellants.
David L. Schenberg, with whom Patrick F. Hulla andOgletree, Deakins, Nash, Smoak and Stewart, P.C. were on brief,
for appellees.

March 13, 2017

BARRON, Circuit Judge.
this case.

For want of a comma, we have

It arises from a dispute between a Maine dairy

company and its delivery drivers, and it concerns the scope ofan 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 theovertime law or not.
The District Court concluded that, despite the absent
comma, the Maine legislature unambiguously intended for the lastterm 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 disputethat the drivers do perform that activity.

But, we conclude

that the exemption's scope is actually not so clear in thisregard.

Andbecause,

under

Maine

law,

ambiguities

in

the

state's wage and hour laws must be construed liberally in ordertoaccomplish

theirremedial

purpose,

- 2 -

we

adopt

the

drivers'

narrower reading of the exemption.

We therefore reverse thegrant of summary judgment and remand for further proceedings.
I.
Maine's wage and hour law is set forth in Chapter 7 ofTitle 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

workedin

M.R.S.A. § 664(3).

excess

of

40

hours

in

that

week."

26

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 awhole, provides that an "employee" is "any individual employedor 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 §663(3)(A)-(L).
The delivery drivers do not fall within the categories
of workers excluded from the definition.
"employees."

They thus are plainly

But some workers who fall within the statutory

definition of "employee" nonetheless fall outside the protectionof the overtime law due to a series of express exemptions from- 3 -that law.

The exemption to the overtime law that is in dispute

here is Exemption F.
Exemption F covers employees whose work involves thehandling

--

in

one

way

enumerated food products.

or

another--ofcertain,expressly

Specifically, Exemption F states thatthe protection of the overtime law does not apply to:Thecanning,
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 themeaning of the words "packing for shipment or distribution."The

deliverydrivers

contendthat,incombination,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, thedrivers argue that, as employees who fall outside Exemption F,
the Maine overtime law protects them.
Oakhurst

responds

that

the

disputedwords

actuallyrefer to two distinct exempt activities, with the first being"packing for shipment" and the second being "distribution."Andbecause the delivery drivers do -- quite obviously -- engage inthe"distribution"

of

dairy

products,

- 4 -

which

are

"perishable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.

Magistrate

Judge,§ 664(3).1
and

the

The
parties

case

was

filed

referredtocross-motions

aforpartial summary judgment to resolve their dispute over the scopeof Exemption F.

After hearings on those motions, the Magistrate

Judge

ruled

that

Oakhurst's

readingofbetterone

andExemption

recommended

granting

Oakhurst'sF

wasmotion.

the
TheDistrict Court agreed with the Magistrate Judge's recommendationand 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 otherprovisions 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
cessationofemployment);
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 themseparately.
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 sametime, 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.

- 5 -The delivery drivers now appeal that ruling.

Theyraise a single legal question: what does the contested phrase in
Exemption F mean?
interpretationis

Our review on this question of state law
de

novo.

See

Manchester

Sch.

Dist.

v.

Crisman, 306 F.3d 1, 9 (1st Cir. 2002).
II.
The issue before us turns wholly on the meaning of aprovision 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 thethree 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 ofAm., 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

- 6 -

the

federalcourt

instead"look[ing] to the plain language of the statute and our own
interpretation . . . in predicting how the state supreme court"
wouldrule).

Moreover,the

Superior

Court's

decisioninThompson was appealed to the Maine Law Court, which declined tofollow the Superior Court's approach and instead decided thecase on different grounds altogether.

See Thompson v. Shaw's

Supermarkets, Inc., 847 A.2d 406, 409 (Me. 2004).
Nevertheless,thereasons

that

theSuperior

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.
III.
Each

party

recognizes

that,

by

its

bare

terms,

Exemption F raises questions as to its scope, largely due to thefact that no comma precedes the words "or distribution."But

each side also contends that the exemption's text has a latentclarity, 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

wetake account

of

the

relevant interpretive

aids and the law's purpose and legislative history.

For thatreason, we conclude that, under Maine law, we must construe the- 7 -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

ourreasons forreaching

though,need

to work

way

we

first

our

this

throughconclusion,
theparties'arguments as to why, despite the absent comma, Exemption F isclearer than it looks.
A.
First, the text.
696,

697–98

(Me.

2014)

See Harrington v. State, 96 A.3d("Onlyifthestatuteisreasonably

susceptible to different interpretations will we look beyond thestatutory language . . . .").

In considering it, we do not

simply look at the particular word "distribution" in isolationfrom the exemption as a whole.

We instead must take account ofcertain--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 forthese canons here, it is clear that the exemption identifies"distribution" as a stand-alone, exempt activity rather than as
anactivitythat

merelymodifiesthestand-alone,

exemptactivity of "packing."
Oakhurst relies for its reading in significant part on
the rule against surplusage, which instructs that we must giveindependent meaning to each word in a statute and treat none as- 8 -unnecessary.

See Stromberg-Carlson Corp. v. State Tax Assessor,

765 A.2d 566, 569 (Me. 2001) ("When construing the language of astatute . . . [w]ords must be given meaning and not treated asmeaningless and superfluous.").

To make this case, Oakhurst

explains that "shipment" and "distribution" are synonyms.

Forthat 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
frompacking

explains,

for

under

distribution.").
its

reading,By

the"distribution" are not redundant.

contrast,

words

Oakhurst"shipment"

andThe 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.
ChicagoManual

of

Style

§

examples

of

6.123

lists

with

such

(16th

ed.

conjunctions).

2010)

See The(providing

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

- 9 -

overtimelaw

containstwoother lists in addition to the one at issue here and that eachplaces 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

fromovertime

law"automobile

mechanics, automobile parts clerks, automobile service writers
and automobile salespersons as defined in section 663" (emphasis
added)).
Oakhurst acknowledges that its reading would be beyond
dispute if a comma preceded the word "distribution" and that nocomma 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 thelast item of a series."

Maine Legislative Drafting Manual 113(Legislative

Maine

Council,

State

Legislature

http://maine.gov/legis/ros/manual/Draftman2009.pdf

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 adrafting convention that is at least as old as the Maine wage
and hour law, even if the drafting manual itself is of more
recentvintage.

See,

e.g.,

Me.

- 10 -

Stat.

tit.

26,

§

663(3)(G)(1965) ("processing, canning or packing"); Me. Stat. tit. 26, §665(1) (1965) ("hours, total earnings and itemized deductions").
B.
If no more could be gleaned from the text, we might be
inclinedtoread

Exemption

F

asOakhurst

does.

But,

the

delivery drivers point out, there is more to consider.

And

while

the

these

other

features

of

the

text

do

not

compeldrivers' reading, they do make the exemption's scope unclear, atleast 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.
distinct.

Those activities, the drivers argue, are each

Theycontendthat"shipment"

referstotheoutsourcing 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

or

drivers

note

that

this

distinction

is,

in

another, adhered to in dictionary definitions.

one

form

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

when

it

is

hard

to

words
see

("shipment"

why,

on

and

Oakhurst's"distribution")
reading,

legislature did not simply use just one of them twice.

- 11 -

theAfterall, if "distribution" and "shipment" really do mean the samething, 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") todescribe the activity itself.
Thedrivers'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 areseparate 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

"packing" need not be understood to be wasteful.

todescribe

Such usage

could simply reflect the legislature's intention to make clearthat "packing" is exempt whether done for "shipment" or for"distribution" and not simply when done for just one of those
activities.3

3

We also note that there is some reason to think that thedistinction between "shipment" and "distribution" is not merely
one that only a lawyer could love.
Oakhurst's own internalorganization chart seems to treat the two as if they areseparate activities.

- 12 -

Next, the drivers point to the exemption's grammar.
The drivers note that each of the terms in Exemption F thatindisputably 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
astheparallelusage

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 aparallel series must be a functional match of the others (word,phrase,clause,functioninsentence)theadverb).").

sentence

serve(e.g.,

thesamegrammatical

noun,

verb,

adjective,

In accord with that convention, the drivers read"shipment"

and"distribution"

preposition"for""packing."

And

referring

and

to

that
the

each

describes

drivers

stand-alone,

read

exempttobeobjects

of

the

the

exemptactivityofthegerunds

eachbeactivities--

to"canning,

preserving . . . ."By
Oakhurst's

contrast,
readingintreatsviolationoftheconvention,

one

the

two

non-gerundsof("distribution") as if it is performing a distinct grammatical- 13 -

function from the other ("shipment"), as the latter functions as
an object of a preposition while the former does not.
Oakhurst's

reading

convention

in

also

another

contravenes

way:

it

treatstheaparallelnon-gerund

And
usage

(again,"distribution") as if it is performing a role in the list -naming

anexemptactivity

in

its

own

right

--

that

gerundsotherwise 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)(referringto"manufacture,
distribution or shipment"). And when the Maine legislature has
elsewhere listed the activity of "distribution" alongside otheractivities that appear in the gerund form, it has used thegerund "distributing."
See, e.g., 9 M.R.S.A. § 5003(5) ("forpurposes ofraising 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 areprovisions 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 uniquestructure that Exemption F would have under Oakhurst's reading,in which a contested term is grammatically parallel with somelist items but not others, and yet is used, as Oakhurst
contends, to serve a different grammatical function than theterm to which it is parallel. Instead, Oakhurst's examples areof 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, theprovisions that Oakhurst cites are not ambiguous as to whether
the non-gerund terms are in fact stand-alone list items.
The- 14 -

thedeliverycomma.

They

acknowledge

missing

Finally,

driversthatcircle
the

back

to

draftingthat

manualadvises drafters not to use serial commas to set off the final
item in a list -- despite the clarity that the inclusion ofserial commas would often seem to bring.

But the drivers pointout that the drafting manual is not dogmatic on that point.

The

manual also contains a proviso -- "Be careful if an item in theseries is modified" -- and then sets out several examples of howlists with modified or otherwise complex terms should be written
to

avoid

the

ambiguity

otherwise create.

that

a

missing

serial

comma

would

See Drafting Manual at 114.

Thus, the drafting manual's seeming -- and, from ajudge's

point

of

view,

entirelyambiguous

lists

does

suggestainsistence

that

the

missingcomma

preferred reading.

welcomereason

to

casts

--

distaste

doubt
no

for

Oakhurst's

doubt

on

its

For, as the drivers explain, the drafting

manual cannot be read to instruct that the comma should havebeen omitted here if "distribution" was intended to be the lastitem 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 principleof parallel construction -- an aid to resolving statutory
ambiguities -- would never come into play with respect to those
provisions.

- 15 -

warns drafters not to create.5
Still, the drivers' textual points do not account forwhat seems to us to be Oakhurst's strongest textual rejoinder:
no conjunction precedes "packing."

Rather, the only conjunctionin the exemption -- "or" -- appears before "distribution."Andso, on the drivers' reading, the list is strangely stingy whenit comes to conjunctions, as it fails to use one to mark off the5

For related reasons, the consistent omission of serialcommas in the various other statutory lists that Oakhurst points
to is not all that probative.
None of Oakhurst's examples areof lists in which the missing comma creates an ambiguity as towhat the final list item is. Thus, the omission of the serialcomma in those lists does not show the legislature would haveomitted the comma in this list, as the omission of the commafrom 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 todiffer from Maine's when it comes to serial commas. Some statelegislative drafting manuals expressly warn that the absence ofserial 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 thepreceding one"); U.S. Senate Office of the Legislative Counsel,
Legislative Drafting Manual § 321(c) at 79 (1997) (same language
as House Manual).

- 16 -

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
enumerated

will
items

omit

conjunctions[ina"asyndeton," id. at 119.
mostlegislative

drafterslist],"

altogetherinabetweentechniquethecalledBut those same authors point out thatavoid

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
IV.
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 thatwords grouped in a list should be given related meaning." Dolev. 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 ofwhich 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 thedrivers' noscitur a sociis argument.
And even if "marketing"does not mean promoting goods or services, as in the case ofadvertising, 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 forsale in a market"), it is a word that would have at least somepotential commonalities with the disputed word, "distribution."
For that reason, this canon adds little insight beyond thatoffered by the parallel usage convention.

- 17 -

We

arereluctanttoconclude

from

the

text

alone

that

the

legislature clearly chose to deploy the nonstandard grammaticaldevice of asyndeton.

But we are also reluctant to overlook theseemingly 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 aresult, 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) ("Ourpurpose in construing astatute is to give effect to the legislative intent as indicatedby the statute's plain language, and we examine other indicia oflegislative intent, such as its legislative history, only when
the plain language is ambiguous.").
A.
Oakhurst

contends

that

the

evident

exemption strongly favors its reading.
exemption,

Oakhurst

asserts(albeitpurposeofthe

The whole point of the

without

referencetoany

directly supportive text or legislative history), is to protect
against the distorting effects that the overtime law otherwise
might

have

perishableonemployer

foods

will

decisionsnotspoil.

about
See

how

best

O'Connor

tov.

ensureOakhurst

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- 18 -

theexemptionfor

employees

engagedintheproduction

anddistribution of perishable foods can only be to achieve the mostefficient possible production and delivery given the nature of
the product").

And, Oakhurst argues, the risk of spoilage posedby the distribution of perishable food is no less serious thanis the risk of spoilage posed by the other activities regarding
the handling of such foods to which the exemption clearly does
apply.
Oakhurst
history

supports

then
this

goes

on

supposition

to

argue

about

that

legislative

thelegislaturewhat

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 hourlaw, which had been enacted four years earlier.

Oakhurst thennotes 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 allother respects looks a lot like what became Exemption F.

Inparticular,inloading,that

unloading

propagating,freezing,

carve-outorpacking

processing

curing,appliedstoring.

(otherortoworkers

.

.

than

for

3(F).

- 19 -

shipment

canning),

distributing"forms of animal and vegetable life.""employ[ed]variousorinmarketing,"aquatic

P.L. 1961, ch. 277, §Oakhurst
intendedtoactivities

thus

expand(such

argues

upon

as

that

the

Exemption

existing"canning")

andF

clearly

carve-out

goods

was

by

adding(namely,meats,

vegetables, and "perishable foods" more generally).

And, forthat 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.
B.
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 orlegislative history purports to define a clear purpose for the
exemption.
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 theparticular 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.
Ifperishable

standstogoodsreason

are

that

not

they

packed
may

in

well

a

timelyspoil.

fashion,

Thus,

one

it
can

imagine the reason to ensure that the overtime law creates no- 20 -

incentives for employers to delay the packing of such goods.
The same logic, however, does not so easily apply to explain theneed to exempt the activity of distributing those same goods.
Drivers delivering perishable food must often inevitably spendlong periods of time on the road to get the goods to theirdestination.

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

matterwhat

deliverydrivers

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

increasing the risk of food spoilage is just that.

have

on

But such

speculation does make us cautious about relying on what is onlya presumed legislative purpose to generate a firm conclusion
about what the legislature must have intended in drafting the
exemption.
Moreover, insofar as the legislative history does shedlight on that purpose, it hardly supports Oakhurst's account inany clear way.
the

language

Significantly, Exemption F does not simply copy
from

the

carve-out

in

the

1961

definitionof"employee" that bears on whether "distribution" is an exempt
activity.

Instead,thelegislature

made

some

seemingly

significant changes to the language of that carve-out -- changes- 21 -

that Oakhurst overlooks.
The"employee"

relevant

reads:

language"employment

in

in

the

the

1961

. . .

definition

packing

of

of
such

products for shipment" and "in . . . distributing" the products.
By using two prepositions, "for" and "in," the text of thatcarve-out clearly separated the activities of packing products
forshipment

andof

distributing

those

products,

with

the

consequence that each activity was plainly excluded from thedefinition of "employee."

Exemption F, however, deletes thesecond preposition, "in," and thereby strips the new language ofthe 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 historywereright,

then

there

would

have

been

legislature to have made these revisions.

noreasonfortheAfter all, theserevisions 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.

- 22 -

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

versionofthedefinitionof"employee"

excluded workers engaged in "packing . . . for shipment" and "in.

.

.

distributing""aquatic

animalandvegetablelife"

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 themthat 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 justto "packing," or even just to "packing for shipment."
to "packing for shipment or distribution."

It refers

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 referringto that activity.

That is the form that the legislature used in

the exemption from the earlier definition of "employee" and thatthelegislature

has

used

to

refer

- 23 -

to

all

the

other

exemptactivities in Exemption F.
C.
To be clear, none of this evidence is decisive eitherway.

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 tocraft Exemption F as the drivers contend that the legislaturecrafted it.

Thus, we do not find either the purpose or thelegislative history fully clarifying.

And so we are back towhere we began.
V.
We
forward.

are

not,

however,

without

a

means

of

moving

The default rule of construction under Maine law for

ambiguous provisions in the state's wage and hour laws is thatthey "should be liberally construed to further the beneficent
purposes for which they are enacted."

Dir. of Bureau of Labor

Standards

1300

v.

Cormier,

527

A.2d

1297,

(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 Mainethat workers employed in any occupation should receive wages
sufficient to provide adequate maintenance and to protect theirhealth, and to be fairly commensurate with the value of theservices rendered."

26 M.R.S.A. § 661.

- 24 -

Thus, in accord withCormier, we must interpret the ambiguity in Exemption F in lightof the remedial purpose of Maine's overtime statute.
we

do,

the

ambiguity

clearly

favorstheAnd, whendrivers'

narrower

default

rule

reading of the exemption.
Oakhurst

counters

that

this

of

construction does not apply when the question concerns whether awage 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'srequirements, and the remedial nature of the statute requires
that

[its]

employers

exemptions

seekingtobenarrowly

construed

assertthem."(alteration

againstintheoriginal)(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

exemption.").
application

fit

plainly

andunmistakably

withintheThus, Oakhurst contends that the rule has nohere,"distribution"

is

as

the

exempted,

disputeandcenters
not

what

on

whether

constitutes"distribution."
But we see no basis for so confining the application- 25 -

of this maxim of Maine law.

Cormier did not by terms set forththat limit on the potential application of the rule that itannounced.

And, in fact, Cormier itself applied the maxim toresolveambiguity

anexemption

at

all.

that

did

Cormier

notconcern

the

scope

insteadapplied

it

to

of

an

determinewhether, 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

arguesthat

thisdefault

ruleof

construction applies only when courts apply law to facts and so
does

not

apply

"distribution"topurelydescribes

an

legal
exemptactivity that is at issue here.

question
activity

or

about

whetherisexemptanBut, in construing "employer,"

Cormier was not simply making -- as Oakhurst would have it -- afactualjudgmentasto"whethereconomic

reality

andthetotality of the factual circumstances supports a finding thatmultiple companies could be treated as one employer."

Rather,Cormier first resolved a purely legal dispute over the meaningof "employer," and it did so with reference to this rule ofconstruction.
Specifically,
challenging

arulingthedefendants

thatvariousinthat

corporate

case

were

entities

andpartnership controlled by a single family -- collectively known- 26 -

as Funtown USA -- constituted a single "employer."

527 A.2d at

1297-99.

meant

That

designation

matteredbecauseitthat

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

various entities.

many

hours

for

any

one

of

Funtown

USA's

The defendants contended "that the 'joint

employer' concept is foreign to Maine law, and is not set forthor described in any state statute" and thus that "once it isestablished

that

the

entities

shams, the inquiry should end."arelegally

distinctandnot

527 A.2d at 1299.

The Superior Court in Cormier ruled, however, that theterm "employer" in the overtime law did encompass the jointemployer concept.

Id. And the Maine Law Court agreed, holdingthat the Superior Court's "balancing of the several factors that
resulted in its ultimate conclusion was a logical, coherent andlegally sufficient mode of analysis."

Id. at 1300.

And it wasin the course of embracing that legal conclusion regarding theproper resolution of the ambiguous term "employer" that Cormier
deployedthecanon:"Remedial

statutesshouldbeliberally

construed to further the beneficent purposes for which they areenacted."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,- 27 -

Cormieranalyzedwhether the particular legal entities at issue in the case were
in

fact

properly

characterizedasconstituting

employer" given their ties to one another.

a"jointId. at 1301–02.

But

there is no indication that, in concluding that the various
entitiesthat

comprised"Funtown

USA"

were

in

fact

a

joint

employer, id. at 1297-98, Cormier held that that the rule ofliberal construction may be deployed only to resolve questions
pertaining to the application of law to fact.
Because Cormier does not state the rule of liberalconstruction as if it is one that may be used to resolve only
some ambiguities in Maine's wage and hour laws, and because
Cormier

itselfapplies

the

rule

to

resolveapurelylegal

question, we see no basis for concluding that we are free toignore this rule of construction in resolving the ambiguity that
we confront.
legislativeThus, notwithstanding the opacity of the text andhistory,

we

do

not

believecertificationofaquestion 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 ofstate-lawissues

when

we

can

discern

withoutdifficultythecourse 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- 28 -

furthers the broad remedial purpose of the overtime law, whichis to provide overtime pay protection to employees.
Givendrivers

contendshipment

nor

erred

granting

Oakhurst

summary judgment as to the meaning of Exemption F.

If theengageinthatneither

distribution,

the

the

deliverypacking

District

for
Court

in

that

they

packingfordrivers 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 -- thedrivers fall outside of Exemption F's scope and thus within theprotection of the Maine overtime law.
VI.
Accordingly,

theDistrict

Court’ssummary judgment to Oakhurst is reversed.

- 29 -

grantofpartial