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Creamery won't close during overtime pay trial

Contrary to the statements of their attorneys and General Manager Ken McMahon, the Ellsworth Cooperative Creamery won't shut down next week while defending its overtime wage practices at trial in Madison.

Twenty-five of the creamery's unionized employees have alleged the creamery doesn't pay them for the overtime hours they work.

The employees contend they aren't paid for the 10 minutes they are required to be at work and ready before punching in. The employees also contend they aren't paid for the minutes during which they can't leave work until their replacement is in place.

The suit, filed in July, claims the creamery's practice of not paying overtime or for pre- and post-shift work violates the Federal Labor Standards Act and Wisconsin wage and hour regulations.

On the creamery's request, the trial was to be held in Eau Claire, Wis., on Monday before District Judge John Shabaz.

That changed in January when Shabaz fell and injured his shoulder. He will be on medical leave for at least two months.

The case was reassigned to Judge Barbara Crabb, and McMahon and the creamery's attorneys asked that the trial still be held in Eau Claire because moving it to Madison would create a "dramatic hardship" for them.

The creamery operates 24 hours a day, seven days a week, receiving 1.8 million pounds of milk daily from 512 dairy farmers.

In an affidavit filed with the court, McMahon said the number of supervisors and employees scheduled as trial witnesses would cause the plant to close for the week and a "great deal of income to dairy farmers would be lost."

However, for Crabb, whose caseload had just doubled with Shabaz on leave, an Eau Claire trial wasn't an option, said Theresa Owens, clerk of court.

"Administratively, I just don't see how it could be done," she said.

Owens agreed holding the trial in Madison may put more pressure on the creamery to settle, but parties are "obviously not" in the settlement mode.

The parties had the option of having Magistrate Stephen Crocker hear the case in Eau Claire, but declined, Owens said.

Plant Supt. Joe Hines said the plant "will run next week. We'll take care of the milk."

Hines said he was preparing to go Madison for trial on Monday, but declined further comment on the case.

Given the $75,000 federal threshold for such cases, the $107,800 in potential damages employees could win as identified by their expert witness prompted some courthouse observers to speculate that the case would be settled before trial.

If jurors find the creamery violated federal and state wage laws in not paying employees for time spent dressing for work and receiving instructions from co-workers or supervisors, they would have lost a maximum of $89,647 in pay under federal law and a maximum of $18,150 under state law.

If jurors find the violations were willful, the employees can receive wages lost for the past three years, or two years if there was no willful finding made.

Also, a verdict against the creamery would result in adjust its overtime pay practices.

The loss amount was calculated by an accountant hired by the plaintiffs and based on the employees' hourly wages, which ranged from $13.15 to $17.65 and the approximately one to two hours a week they worked but weren't compensated.

The creamery contends their overtime compensation practices comply with federal and state law and changing into uniforms doesn't constitute activity that should be compensated.

Shabaz rejected the argument in a ruling last month, setting the matter for trial.

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