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.
