Wal-Mart says it’ll pay a $7,000 OSHA fine in connection with the 2008 trampling death of a store employee. This ends a six-year fight by the retail giant against the General Duty Clause (GDC) citation.
Wal-Mart withdrew its appeal to the Occupational Safety and Health Review Commission (OSHRC), according to the Huffington Post. This means the fine will stand. The company hasn’t paid yet, but a spokesman says it will.
OSHA issued one serious violation of the GDC to Wal-Mart 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 burst into the store for day-after-Thanksgiving sales.
This marks the second time in recent years that OSHA has successfully used the GDC to cite an employer in an employee death that received considerable media attention.
A case against SeaWorld ended in a similar fashion. The marine park appealed OSHA’s GDC fine in the February 2010 death of trainer Dawn Brancheau who was pulled underwater by a killer whale. A U.S. appeals court allowed an OSHRC decision against SeaWorld to stand. The company could’ve appealed to the U.S. Supreme Court but decided not to.
An administrative law judge had ruled against Wal-Mart which had appealed to the full commission.
This doesn’t mean Wal-Mart has had a change of heart. It still thinks OSHA is wrong. A company spokesman told HuffPost:
“We maintain our position that the citation from OSHA should not have been issued, because it imposed standards that did not exist and were unknown to the retail industry at the time of the incident. With the likelihood that this would not conclude for a long time, we decided to put it behind us and withdraw the appeal.”
No word on whether the result in the SeaWorld case had any effect on Wal-Mart’s decision.
OSHA administrator David Michaels told HuffPost the agency was “delighted” to hear about Wal-Mart’s decision. “More important than the penalty is knowing that Wal-Mart and other large retailers recognized the potential for danger,” Michaels said.
Less than a year after Damour’s death, OSHA issued crowd control guidelines to retailers. While guidelines aren’t regulations, it would now be difficult for any retailer to deny knowledge of the hazards of crowds lining up by the hundreds to get into a store before a large sale.
Wal-Mart has issued its own crowd management guidelines to its stores.
Had a court thrown out either Wal-Mart’s or SeaWorld’s citations, OSHA’s use of the GDC could have been compromised.
When the citations against SeaWorld were first upheld in 2012, Michaels said, “This is one more example that OSHA can use the General Duty Clause in most situations where we don’t have a standard.”
$7,000 or millions?
The price of one serious OSHA violation – $7,000 – is certainly a drop in the bucket for Wal-Mart.
But both sides have spent much more money on this case.
A New York Times article documented that Wal-Mart had spent $2 million fighting the $7,000 fine. The 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.
Those figures show how much both sides felt was at stake in this case.
Do you think that this latest GDC success for OSHA will cause the agency to use the clause more often in leveling fines against companies? Let us know what you think in the comments below.
