Safety and OSHA News

OSHA’s new tactic to hit companies with more fines


While it didn’t cite Wal-Mart for a violation of a specific standard, OSHA has used its General Duty Clause to fine the retailer in the trampling death of a worker last November.

Wal-Mart has 15 business days to decide whether to pay the $7,000 fine or appeal it.

OSHA issued Wal-Mart one serious citation under its General Duty Clause for inadequate crowd management following the Nov. 28, 2008, death of its employee, Jdimytai Damour, at its Valley Stream, NY, store.

Damour died of asphyxiation after he was knocked to the ground and trampled by a crowd of about 2,000 shoppers who surged into the store for its annual day-after-Thanksgiving sale.

OSHA says employees were exposed to being crushed by the crowd due to the store’s failure to implement reasonable and effective crowd management techniques.

OSHA’s acting director for the Long Island, NY, area, Anthony Ciuffo, said this was not an unforeseen situation. Ciuffo says Wal-Mart should have recognized the hazards based on previous Friday-after-Thanksgiving crowds.

Wise use of General Duty Clause?

The agency cites the General Duty Clause when there’s no specific regulation that covers an incident resulting in serious injury or death.

OSHA’s General Duty Clause states, “Each employer shall furnish to each of his employees employment and place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”

How does OSHA define “recognized hazards”? In its recently revised Field Operations Manual (FOM) for inspectors, OSHA lists three ways in which a hazard qualifies as recognized:

  • Employer recognition: This can be established by evidence of actual employer knowledge of a hazardous condition.
  • Industry recognition: A hazard is recognized if the employer’s industry is aware of its existence.
  • Common sense recognition: The FOM states, “Hazard recognition can still be established if a hazardous condition is so obvious that any reasonable person would have recognized it.”

So, here’s the question: Do you think trampling by a crowd was a recognized hazard in this Wal-Mart case? Also, what do you think about OSHA’s increased use of the General Duty Clause overall? Let us know in the Comments Box below.

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  1. Jack Watts says:

    Does this expose fire and police departments to the same treatment by OSHA? Two bank robbers open fire on a policeman and the police dept. is liable and responsible because they failed to recognize an obvious hazardous condition? What is the OSHA accepted response, one cop per criminal or two cops per criminal to insure a safe and successful apprehension? what if the criminal has a 20 round magazine in his hand gun and the cop only has nine rounds in his…….employer liable again?
    Where are the manslaughter charges for the maniacs that killed the employee?

  2. I can’t believe the fine was only $7,000. That doesn’t even qualify as a slap on the wrist for this kind of employer recklessness. That is more like a naughty-naughty wave. This gigantic, multinational retail conglomerate that has made its fortune by marketing useless junk to millions of helpless consumers and by paying its employees as close to zero as they can legally get away with, recklessly advertises a sale that by its very nature incites cheez-doodle addicts and armchair aficionados to gather at its doors and compete for entry. Wal-Mart is completely responsible for this person’s death. The fine needs to have at least one zero added to it, and preferably two.

    To a point there needs to be some reckoning on the part of the trampling stampede, but only to a point – the people that show up for these “blitz” sales tend to act like cattle anyway.

  3. Was Wal-Mart cognizant of the hazard? Yes, definitely. There are far too many recorded cases of shoppers being abusive (mentally and physically) during the “silly season” leading up to Christmas. Newspapers hype the sales for days and then you ‘limit’ the quantity available per store and that sets the stage for a feeding frenzy.

    OSHA is well within its rights to fine Wal-Mart in this instance. They should have been hit harder in my opinion. Let them really understand what is meant by ‘the high cost of low prices’.

  4. safetyguy says:

    Common sense recognition: The FOM states, “Hazard recognition can still be established if a hazardous condition is so obvious that any reasonable person would have recognized it.”

    If it is so obvious than you would think Osha would have a regulation for this. This becomes difficult when you have to guard against what others might do. Who would have guessed the crowd would be so inconsiderate and forceful to get into the building? Maybe all service desk personel should wear bullet proof vest’s just in case a disgruntled customer pulls out a gun.

    I agree with Jack in that these customers should be held accountable. Where is their responsibility in this persons untimely death?

  5. I don’t feel that it matters how large the corporation is when it comes to violations & resulting fines. I work for a large hoembuilder and feel that many times we are singled out because we are assumed to have deep pockets while the smaller builders pay absoloutly no attention to OSHA regulations or general safe work pratices. it doesn’t matter if you are building 10 houses a year or 10,000 and it doesn’t matter if you are Wall-Mart or another smaller retailer, the rules need to be applied the same. Excessive fines towards specific size companies is rediculious and is only passed on to the consumer in the end.

  6. Brian Thestud says:

    This is righteous violation. In Michigan, the General Duty Clause violation is not uncommon although it is rare.
    The Bank Robber scenario is a little different. It is not necessarily considered a “recognized hazard”. Meaning that Police Departments are not considering shoot outs with bank robber’s part of the routine of the job. Negotiation and non-violent tactics are preferred and trained.

    An example that happened recently in SE Michigan was the Deputy Sheriff that ran into a burning building and carried an elderly lady out on his back. MIOSHA did not cite the violation until the Sheriff gave the Deputy an award. MIOSHA’s view was that the Department was encouraging the officers to enter hazardous situations without first donning the proper PPE and taking appropriate precautions.

  7. Are you kidding me. This is lame. The fine is so low it is not even worth fighting, it will cost more in lawyer fees to fight it then to pay the fine. Once they pay the fine. WalMart admits guilt and will the lose the wrongful death suit. Why is the city police department fine by having more police there to control the shoppers. They knew the store will be open and even had two police there before it opened. Why not fine the owners of the building. (Wal Mart rents it) for not having enough doors into the building.

    The other problem is OSHA. OSHA needs a reality check. Business owners and employers can not control everything in this sue happy world.

  8. dave Lemke says:

    I guess I agree with Nick to a point on this one. I also have a lot of anamosity toward a company that buys cheap and sells cheap because people are not paid any more than a poppers wage on either end of the spectrum. If the owners lived on average homes and had moderate incomes then maybe you could justify this store. The feds are correct on this one. This sort of thing has happened before with these large stores being rushed. They should have done something to protect there workers. You can almost invision the day when the Armed forces are called out to open the doors on sale day. I hope those in power understand just how bad a job they are doing. When a country is so poor and desperate that folks feel they have to battle like this just to get a deal. personally I need nothing so bad that I will ever line up like a cow and stampede the store. I also would hope that any one who can be identified in this crowd that did not try to help that employee should be charged with Manslaughter of some degree. I am sure that customers also felt they were wronged. My comment to them would be that if you are going to run with the Bulls expect to get the horns or at least trampled. Another example of common good sense not prevailing!

  9. Jim Shelburn says:

    Yes, this is a proper use of the General Duty Clause. Since similar incidents had occurred in the past, actions should have been taken by Wal-Mart, or any retailer in a similar situation, to provide some kind of added protection for employees.

    This is the purpose for the General Duty Clause. It’s unrealistic to have a regulation published for every kind of hazardous situation (Not to mention the time to get a regulation published!), and the intent of the Clause is to cover exactly these types of situations.

  10. I disagree with Jack, how can you hold any customer responsible for this act? The hype that is created by Walmart advertising created the frenzy long before the doors were opened. The fenzy is puposely created to increase sales. Walmart is at fault and should be punished. I agree with Nick, the fine should have been considerably more. I hope the employee’s relitives are pursuing other means of compensation as well.

  11. Do ya think we would be going down this same road if a customer were killed instead of an employee?

  12. I am in absolute agreement with the fine. Every employer has to anticipate hazards in the work site, either as part of the real job function or as the result of an employer sponsored event.
    Walmart continues to be in the news for thumbing it’s nose at basic business tenets and corporate responsibilities.

  13. Brandon says:

    Dave, you said that “if you are going to run with the Bulls expect to get the horns or at least trampled.” With that statement, would you then agree that “common sense” would tell a customer that there is an obvious and proven danger when participating in this event? I would think so.

    Now I ask, if customers are injured due to lack of recognizing a hazard “so obvious that any reasonable person would have recognized it,” how can the company be found at fault? They couldn’t help the fact that their customers were acting this way!

    safetyguy and Jack, you said it best: “these customers should be held accountable. Where is their responsibility in this persons untimely death?”

  14. “This gigantic, multinational retail conglomerate that has made its fortune by marketing useless junk to millions of helpless consumers and by paying its employees as close to zero as they can legally get away with, recklessly advertises a sale that by its very nature incites cheez-doodle addicts and armchair aficionados to gather at its doors and compete for entry.”

    Well, Nick, you have successfully bashed everyone involved except for the victim. No word from the press if he was a cheez-doodle addict….yet. Then what?

    Nick, You obviously have an agenda regarding Wal-Mart anyway. Ever actually talk to Wal-Mart employees? I have done so on many occasions and they are all glad to work for Wal-Mart. Last time I checked, nobody is forcing them to work there. Last time I checked, most employees at the Wal-Mart here in my town in northern Wisconsin have worked there for 7-10 years! They are acutally proud to be working there. Oh, the horror of it all!!!

    Now to the point: Wal-Mart should have recognized the potential hazard, as should have the unfortunate victim. Wal-Mart happened to be the one OSHA has lowered the boom upon, for there are other such stores besides Wal-Mart where such tramplings have happened.

    $7000 is a light fine, but the amount of rthe fine is not the point. The citation itself is the point. OSHA knows that the amount of the fine is not as important as the citation. Money is NOT going to bring the victim back. Wal-Mart (and other stores) will be taking the proper precautions to avoid such an unfortunate incident from happening again.

    By the way. How many people get crushed EVERY YEAR at soccer matches around the world? Or, how many fans simply get the hell beaten out of them at virtually any match in foreign countries because they root for the wrong team? I guess cheez-doodle adicts are EVERYwhere!

  15. Failing to recognize Walmart’s responsibility for this employees death would be nothing short of the laundry list of atrocities Walmart commits on a daily basis. So at least OSHA has attempted to require some form of penal responsibility, regardless of how ridiculous the fine is. Despite how I feel about the company, the fact remains that if a company can look out their door and see a mass of customers waiting to get in (most likely spent quite a few hours waiting = impatient, unruly and cranky customers) it’s only common sense that serious precautions need to be taken for the safety of their staff and the physical structure of the store itself.

    We all need to take ownership for our actions, but if marketing efforts by the media and the businesses themselves didn’t create the “Day After Thanksgiving Monster” then there would be fewer opportunities for these types of accidents to occur.

  16. Randy Kresge says:

    I don’t know the physical arrangement of the entrance at the Wal-Mart store involved, but assuming it is a similar arrangement to every other Wal-Mart, then, yes, I think store management should have recognized that an on-rush of customers was likely, should have done more to safequard their employees, and should have done more to effectively control the crowd.

  17. According to a lot of the responses here, Walmart should have had a riot squad on sight to hose the crowd back . . . jeez people, whatever happened to personal responsibility? The only thing that could have prevented this would have been for MULTIPLE police units to have been on sight and even then there would have been problems. . . (not that any municipality would have provided those units) Should Walmart be fined if it had 10 security guards on site? What about 12 guards? Maybe 15? 50? Wouldn’t have mattered . . . no security guard in their right mind is going to risk getting assaulted by this bunch of animals . . . Let’s call this what it is – Federal government finding more and more ways to take our money! For all of you that are not familiar with economics, the consumer (you and I) will pay this fine when Walmart raises prices to cover this amount.

    Then again, in our new “hope and change” society the government will eventually own Walmart anyway . . .

  18. It is obvious that all Wal-Mart stores need to be closed. We all know that the store manager sat at home for weeks trying to pick just the right person to put in front of those doors. “Hmmm let me see, if we put Mr. Damour there he is sure to be trampled and we will have it on video to play at our managers conference next year.

    And, if we close all of the Wal-Mart stores, we will have an additional 1.5 million out of work people to start feeding at the Government Trough

    Not only that, but it will also do away with the evil charitable contributions that they make. Just look at these:

    How does Wal-Mart support local community programs?

    Local Wal-Mart associates and SAM’S CLUB partners helped raise and contribute $170 million to local charitable organizations in 2004. They accomplished this by organizing fundraisers and making grants to organizations that are making a difference in their communities. Some of our giving achievements for last year include:

    – More than $61 million in community grants.

    – More than $300 million in 18 years for Children’s Miracle Network.

    – More than $170 million in 18 years to United Way chapters.

    – $91 million in scholarships since 1979.

    – $5 million in Volunteerism Always Pays grants.

    – $20 million raised and contributed during the 2001 holidays.

    – Nearly $16 million given in response to the events of September 11.

    Wal-Mart contributed $2.2 million directly to Oregon community programs last year, and paid over $8 million in taxes.

    Now, I am no fan of Wal-Mart, but this kind of thing will trickle down to every business, and soon we will all be victims of a tyrannical government.

    Remember, the government cannot give to anyone, anything it does not first take from someone else.

    Who’s next?

  19. Why have any regulations at all. Just cite the general duty clause for everything. And why not cite for any hazard at all that the OSHA inspector might think of, on the fly.

    Wow, like Dave Lemke says lets get those companies buying cheap and selling cheap. We will crush them with OSHA, wow great! Let’s crush all big companies like others here want to do; or even if they might ever become big someday, lets crush them bad guys.

    Perhaps you would like to take the next step and cite employers for every injury that occurs? I mean according to the general duty clause the place wasn’t safe or an injury could never have happened at all. And while we are crushing evil companies lets fine them $700,000 per injury that will stop all them thar injuries and all them thar hazards, right Nick and Dave.

  20. Amen Chuck……………. this forum has turned into a “bang on WalMart” session. If That company is so poorly run then why do people go there? Why do people continue to work there? Has WalMart done ANYTHING that many other companies have not done? How about the countlless individuals that are shot & killed in convience & liquor stores every night of the week in this country, should they be fined for not providing adequate security? If you have an axe to grind with WalMart then don’t shop there! As for OSHA fines, spread them around equally & don’t base fine amounts on the ability to pay!

  21. Johnny Sea says:

    Don’t worry about the $7000. Paying the meager $7000 dollar fine is like accepting blame. If WallyWorld does this, then mega-lawyers will sue for a skabillion dollars.

  22. Donald McLeod says:

    I don’t like Wal Mart but I don’t see how you can say WalMart should have been aware of the risk. Trampled, give me a brake, who would have thought that it would happen. Should they have been aware of a lot of people coming? You can bet they were aware and everyone at work who they could. The size of the fine tells me that OSHA is trying to say we hold you WalMart repsonsibe and at $7000 it is cheaper to pay the fine than fight it. The people who should be fined are the folks who pused the employee down and then walked all over him. I can’t believe noby noticed.

  23. Brian Thestud says:

    Actually, Walmart can do one of two things: 1) agree to settle and waive the right to appeal further (what most companies do) and receive a discount of 50% of the fine, or 2) formally appeal and probably recieve a reduced fine but the bonus here is you get to choose from about 5 prepared (by OSHA) passages that go into the final ruling that states the results cannot be used in a court of law for the purposes of implying guilt or finding fault with the employers actions.

  24. Jim in Virginia says:

    It doesn’t matter who it is, Walmart, Target, Best Buy, it’s a ever increasing abuse of the General Duty Clause to cite something like this. OSHA needs to stick to something it can do at least a mediocre job with, that’s actually cite standards. How many constructions sites or plants have you drivent past where every single standard is being followed. Before they expand to try to enforced made up rules maybe they should actually stick to the play book. I’m locked in battle with OSHA for being cited under general duty clause for non-safety standards for which they have absolutely no expertise. I’ve flat out told them to lawyer up, I’ll litigate it to the moon and back and they still want to proceed. Stick to the real standards!

  25. Johnny Sea hit the nail on the head. The amount of the fine is immaterial. Wal~Mart will fight it because if they accept it, its the same as accepting the blame. I personally am not a fan of Wal~Mart and avoid the place at all costs, however they DID have a system in place. From my understanding of the incident, Wal~Mart had set up a line system that a certain amount of “Cheese-doodle addicts” were taking part in. Other customers were simply lulling about in the parking lot. When the doors opened, the lullers shot for the door. The people in line took umbrage to this, and shot for the door too. Who won? Not the poor Wal~Mart employee that was trampled.

    Now as far as the comments about the fine should be higher, the highest single penalty OSHA is allowed to levy is $70,000, and without going back into the books, I’m pretty sure that is only for a willfull violation (don’t quote me on that). But the deal is that OSHA looks at all businesses on the same playing field (ideally), and you can bet they are going to do that on a national level so it doesn’t look as if they are giving mom and pop stores a license to subvert safety because they are just scraping past. So would you expect your local flower shop to get whacked for $70,000 grand because they had a blockbuster sale on Mum’s?

    Finally, to say that Wal~Mart is to blame because they create this 5:00 AM madness craze is a bit off of the mark. What retail store (local or national) doesn’t have a “Good God why am I up this early” sale? To answer that question, there are a lot of “Cheese doodle addicts” that need to look in the mirror for someone to blame. If no one came to the sales, they would cease to exist.

  26. Rick C. All of us in the US are already paying the health care and food stamps for those people that work at Walmart!! Unfair wages and unfair labor practices are the Hallmark of that lowly institution. What a shame that an individual had to give his life for a sale at that awful symbol of the American way. However having said that obviously the people that stampeded the poor guy are responsible for his death. We each are responsible for our own actions and those actions were irresponsible.

  27. OSHA is just another way that the government implements what is the reverse of the mythical ‘Midas Touch’. Anything they touch withers and dies. We see it in the TSA (all of the “Department of Homeland Security,”) banks, insurance, energy and the mythical “man-made global warming”, and a myriad of other venues. Heaven forbid they succeed in getting their tentacles around health care!

    I love the words of Patrick Henry, “Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty, or give me death!”

    Ben Franklin said “They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.”

    The government that says “Come to me and I will avenge your wrongs. Come and I will take care of you,” is worthy of a great deal of distrust.

    I want Liberty, with the associated risk that this condition may cause serious injury or death, may have side effects such as loss of luxury, requiring hard work, and forcing you to have to use your own brain, and the requirement to take responsibility for your own actions. With the risk of Liberty, you have the opportunity to grow and prosper in rich enjoyment of life, love, and achievement.

    OSHA does not need a blank check in the form of the “General Duty Clause!”

  28. I feel that OSHA and other goverment agencies use this and silmilar clauses, (they all have them), to increase revenues when no other violation can be found. the situation at Wal-Mart could have been overlooked because in the past the crouwd control or lack of, methods they had used worked. I know that there must have been video cameras covering this area and the indivduals, acting as THE ANIMALS THE ARE, should be held liable.

  29. Wal-Mart is 100% responsible here. They created the feeding frenzy. They got exactly what they wanted, created hype for the product / store. “The more people we get in the store, the more product we can sell” Pure capitalism.

    That said, a bunch of other stores do the same thing – All the time. In fact, Walmart did not start this selling technique; it has been around for years.

    Walmart created the specific situation and whats more they created the enviornment too. Walmart is a poverty mentality establishment. They create a marketplace built on the suggestion that you cannot afford to shop somewhere else. They suggest to you that you are poor and every dime is a treasure to be retained at any cost. People begin to think they are desperate. When they do that they setup a desperate situation. Add all that up and you got a innocent dead man in the entryway. An absolutely senseless death, trampled to death by shoppers.

    Walmart should eliminate this sales technique, period. But they won’t: money is more important.

    I disagree with the General Duty clause use. If it is a problem then spell it out. OSHA needs to set up a “Promotion Sale” clause for all businesses to follow – outlining Crowd Control and Security Techniques. Probably need concrete barriers, tasers, one width isles, the whole thing.

  30. I think we are losing track of the subject here. Calling the shoppers “animals” and spewing your love or hate for Walmart (and its ilk) is not the issue here. Was Walmart knowledgeable of the hazard on that Friday morning in November? Well, I think we can all assume they were given that on normal days the ‘greeter’ is an older person (retiree?) and on the day in question the ‘greeter’ was a young man. Walmart knew that an older person would stand no chance against the holiday shopping surge that morning. Did Walmart believe that this young man would get trampled to death? No, but they did know that crowd control was an issue and placing the ‘greeter’ in the path of the surging humanity was pure negligence.

  31. safety scott says:

    In this situation, the people that trampled the man need to be responsible for their actions, they physically took his life.Could Wal-Mart have taken more steps to prevent this, possibly, but everyone is accusing without having all of the facts. I hate to think of the mentality behind the thought of fining them purely because they are a larger company and need to bear more of the burden. What a shame for people to suggest, I personally believe Wal-Mart does a decent job in protecting its employees. I have seen their safety principles in action (I do not work for Wal-Mart) while shopping in their stores.

    I am glad that OSHA rendered the fine vs. some of the respondents on this blog, there seems to be a few that are a tad bit negative towards the “American Dream” of achieving great success in business, operating a profitable and relatively safe company. I see a bunch of people so quick to accuse, slander, and belittle Wal-Mart for simply being a business that provides what so many of us want: products for cheap prices, stand behind what they sell, and offer it in generous quantities. This is a free country and people can express their opinions, but sometimes their attitude towards business is so negative that a good company gets a black eye.

  32. It would be impossible to come up with a regulation for events like this. However, WalMart should have not had their greeter standing right there in the middle of the stampede when the doors opened.

    WalMart would have been better off developing general procedures for when there will be a large influx of customers. If nobody’s paying attention to the greeter, then why have the greeter in harm’s way in the first place?

    I agree that the customers were ultimately responsible for this, but if you tried to charge any of them they would be pointing fingers at everyone else in the crowd, rendering an effective criminal charge moot.

  33. Teri B. says:

    They need to have a drawing for a number at these stores. Everyone line up the day before and get assigned a number and a time when they can enter the store. Much like the fast pass at Disneyland. This would cut down on the rush of people. Of course, I refuse to participate in the beginning of the shopping season by getting up at 3am to stand in line to fight with the dregs of society. Come on people, the deals aren’t that good. Besides what is scary is that is really shows a side of humanity that is truly disgusting.

  34. Walmart didn’t sacrifice this guy who failed to get out of the way of a dangerous crowd of people. If the fine reduces the risk of a similar accident, then so be it… $7,000.00 is not a lot of money. As the employer I would excersize my right to appeal the fine. I agree that a general duty clause should be an OSHA tool to help motivate employers to uphold safey in the work environment. OSHA should use caution when using the tool as it is not to be mistaken as a revenue generator for an administration that is in place for the good of us all!

  35. I agree with some of you we are bashing Wal-Mart why? Like all companies they are in business to make money, period. They are not here to be your best friend and if you do not like what they offer or pay go somewhere else, it’s called freedom of choice. No one is forced to work there or shop there get that part right. Enough said about that as for the citation I want to know what the crowds actions were prior to opening the doors and if there was any indication from the crowd as to what was about to happen then under the General Duty Clause the citation is deserved. The manager should have never allowed the doors to be opened. If the crowd appeared to be calm and patient then turned into a bunch of wild animals after the doors were opened, which I believe is what happened, I don’t see how you can foresee that therefore I don’t know how you can cite the General Duty Clause, remember there were thousands of Wal-Marts and other stores that opened that day without incident. Wal-Mart at the very least should have each store manager trained on how to control crowds or at least be trained on what the signs are from crowds that may indicate trouble and what to do if trouble signs are present.







  37. Cheryl Mortensen says:

    I wonder why regulations are written only to protect workers? Think about it… anyone could have been crushed, hazards exist for all people, not just employee’s. Regulations should protect everyone. If large crowds are a known hazard, then regulations and guidance should be written to protect everyone.

  38. Was Wal-Mart cognizant of the hazard? Yes, definitely. There are far too many recorded cases of shoppers being abusive (mentally and physically) during the “silly season” leading up to Christmas. Newspapers hype the sales for days and then you ‘limit’ the quantity available per store and that sets the stage for a feeding frenzy.

    OSHA is well within its rights to fine Wal-Mart in this instance. They should have been hit harder in my opinion. Let them really understand what is meant by ‘the high cost of low prices’.

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