Safety and OSHA News

Wal-Mart spending millions to fight employee trampling death fine

It’s been four years since a Wal-Mart employee was trampled to death by a Black Friday crowd in Valley Stream, NY. OSHA fined the mega-store $7,000. Wal-Mart has now spent millions fighting the fine.

In an e-mail to the Boston Globe, a Wal-Mart spokesman said the company believes the citation has “far-reaching implications” and could lead to the creation of “unfairly harsh penalties and restrictions on future sales promotions.”

On Black Friday 2008, store employee Jdimytai Damour was crushed when about 2,000 shoppers ripped doors off hinges at the Valley Stream store for Wal-Mart’s “Blitz Friday” sale.

OSHA doesn’t have regulations about crowd control in retail or other establishments, so it used its general duty clause (GDC) to issue one serious citation against Wal-Mart for failing to take steps to protect its employees from a situation that was likely to cause injury or death because of trampling.

The GDC states employers have a general duty to provide a workplace that is “free from recognized hazards.” And that’s where the debate comes in.

Wal-Mart says there was no previous federal government or retail industry guidance on how to prevent a trampling death. In effect, it says a trampling death wasn’t a recognized hazard. The retail giant appealed to the Occupational Safety and Health Review Commission.

An OSHRC administrative law judge ruled in 2011 that the citation should stand.

Now Wal-Mart has taken its appeal to the entire OSHRC. That appeal has yet to be heard.

Not just Wal-Mart

A New York Times article documented that Wal-Mart had spent $2 million already fighting the $7,000 fine.

But Wal-Mart isn’t alone in putting lots of resources into this case.

The Times article also noted OSHA poured 4,725 hours of work by federal legal staffers into the case. Over a five-month period, that amounted to 17% of the available attorney hours in OSHA’s New York office.

What’s going on here? All this for a $7,000 fine?

It’s more than that, for both sides.

One way or another, this case will make a statement on how OSHA can use the GDC. What is a recognized hazard? Does a warning from OSHA, or another group such as an industry association, have to exist for something to be considered a recognized hazard?

A ruling for Wal-Mart could have a crippling effect on OSHA. It wouldn’t end the use of the GDC, but it might limit the situations in which OSHA could rely on it.

And to be on the safe side going forward, OSHA has now issued warnings about the hazards of holiday shopping crowds.

Did OSHA rightly use the GDC in this case? Was a trampling death of a retail employee faced by crowds of bargain-hungry shoppers a recognized hazard? Let us know what you think about this case in the comments below.

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  1. No. Like my comment on the previous posting, this is a problem with society not an unsafe workplace.

  2. “The Times article also noted OSHA poured 4,725 hours of work by federal legal staffers into the case. Over a five-month period, that amounted to 17% of the available attorney hours in OSHA’s New York office.”

    Does that sound like a good use of taxpayer dollars? I want to know what the guiding principal is here.

  3. Thank you Wal-Mart for putting your resources to good use. Government overreach is increasing in every direction and regardless of “good intentions” it needs to be stopped wherever it is found. There’s a reason for the cliche; “The road to hell is paved with good intentions.”

  4. I don’t like that OSHA has to spend money on this case, but it is the right thing to do. Wal-Mart should have paid the fine and immediately started to plan for a better way the next time. Wal-Mart should have to reimburse OSHA for what it cost to get the fine, if indeed the final verdict goes as it should. Two Wal-Mart workers killed a shoplifter in the parking lot last weekend. Wal-Mart must do better.

    • Sally, The problem with OSHA is that they are more concerned about power and full control that they are about safety in this case.

      Wal-mart Must Do Better? Remember the person was breaking the law and was trying to escape. I am sad that the person was killed, but he chose to break the law and then tried to escape once he was found out. Are you suggesting that we should let all soplifters get away if they try to escape? How about we let the shoplifters come to your house and take your belongings.

      • fredhosier says:

        Editor’s note: I’m not sure where the impression came that this was a shoplifter trying to escape. It was not. It was an employee working on Black Friday.

  5. How could Wal-Mart, who I am not a fan of, be expected to know that customers would “rip the doors off” of a building to save a few dollars on the latest trinket. This was clear abuse of the GDC tragic but not punishable.

  6. While it may be possible to anticipate the way a crowd people may behave, there is no way Wal-Mart could have predicted the extreme level of behavior exhibited by the shoppers. I don’t think the general duty clause should have applied here. But the GDC is much like NASCAR rule 12-4-A, an open checkbook to penalize anyone at anytime for any reason.

    Sally, just because Wal-Mart didn’t pay the fine, does not mean they didn’t make plans to increase safety for future sales. It’s been 4 years since this event and it hasn’t happened again so they must have done something different.

  7. Sally, I realize people have different opinions on how things should go but do you also believe that OSHA should have to reimburse Wal-Mart if the final decision go their way?
    Just curious!

  8. Again this mess with Wal-Mart.

    The GDC is perfect to apply here for years we have seen on TV in newspapers on the internet the behavior of people on “Black Friday”. People have been acting like sharks in a feeding frenzy on Black Friday and if I remember the situation right Wal-Mart had additional unannounced sales that morning that was to increase shoppers in spending (Now called, interestingly enough, “Door busters”).

    A simple staff meeting informing the employees that it the doors were too crowded and/or the shoppers seemed unruly to vacate the area and call the police could possibly have saved this man’s life. Wal-Mart is concerned that to pay the fine then others may sue as paying could be interpreted as admitting responsibility…….Something I believe they have already and need to stop this nonsense.

    Jerry-If the judge awards court costs to the “winner” the looser should pay.

  9. Night Owl says:

    Walmart has to fight this citation because it is rated serious by OSHA. The next time the citation goes up automatically to a willful violation and this can be at any Walmart store! At that point OSHA can levy heavy fines. OSHA can then go to any Walmart and fine them multable times across the country causing tremendous loses in fines.

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