The New York Times reports that Wal-Mart has spent $2 million so far fighting a $7,000 OSHA fine in connection with the trampling death of a worker. Equally interesting is that OSHA has also devoted lots of resources to make sure this fine sticks. Why? Because the outcome of this case could have wide reaching effects on all sorts of companies.
On the day after Thanksgiving 2008, shoppers trampled a store clerk to death at a Wal-Mart on Long Island.
The world’s largest retailer settled the case with the Nassau County district attorney. Wal-Mart agreed to:
- adopt new crowd control techniques in all 92 of its New York State stores
- create a $400,000 fund for customers injured in the stampede, and
- donate $1.5 million to various community programs.
A $7,000 fine is a drop in the bucket for the huge retailer. Yet, it’s spent more money fighting OSHA than it did in the state settlement.
OSHA doesn’t have regulations about crowd control in retail or any type of establishment. So it used its general duty clause (GDC) to issue one 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 a crowd surge or trampling.
The GDC says employers have a general duty to provide a place of employment that is “free from recognized hazards.” OSHA uses the GDC to issue citations when no federal safety regulation applies directly to a hazardous situation.
Wal-Mart says OSHA is trying to enforce a vague standard when there was no previous federal government or retail industry guidance on how to prevent the trampling death.
The retail giant has filed motions questioning the constitutionality of using the GDC in this case.
The Times article questions why Wal-Mart is spending so much on fighting the small fine.
But the same could be asked of OSHA. It’s worth questioning the huge amount of resources OSHA is using. The article notes OSHA has poured 4,725 hours of work by federal legal staffers into this case. Officials told The Times that over the last five months, 17% of the available attorney hours in OSHA’s New York office have been devoted to the Wal-Mart fine — the equivalent of five full-time lawyers.
One reason Wal-mart is fighting the fine so hard: If another trampling injury or death happens to an employee at any of its other U.S. stores, the company would face even larger repeat fines.
For OSHA, the stakes may be even higher. The agency, under President Obama’s appointee, David Michaels, has signaled that it intends to use the GDC more often to hold employers accountable for identifying and protecting employees against hazards.
For example, Michaels is on record saying that OSHA can’t possibly keep up with creating permissible exposure limits (PELs) for all the new chemicals used by U.S. companies. Instead, OSHA has proposed requiring companies to create their own injury and illness prevention programs (i2p2) to identify hazards.
The i2p2 program would make it that much easier for OSHA to use the GDC against companies. Once a company identifies a hazard, it becomes a “recognized hazard,” that satisfies a condition for using the GDC.
But creating the i2p2 requirement will take time, possibly years, just like any other federal rulemaking process.
In the meantime, OSHA relies on using the GDC in its current form in cases such as this one.
The case is before the independent Occupational Safety and Health Review Commission (OSHRC). If OSHRC rules in Wal-Mart’s favor, it could greatly limit OSHA’s ability to use the GDC not only in retail crowd control but in any other occupational area that’s not covered by a current federal safety regulation.
OSHRC heard the case last week. We’ll keep you updated.
Did OSHA make the right call in this case by using the GDC to issue a fine against Wal-Mart in the trampling death of its employee? What do you think about OSHA’s use of the GDC where no federal safety regulation applies to a specific hazard? Let us know in the Comments Box below.