It’s not uncommon for employers to appeal when the Labor Department issues penalties against them for safety violations – including in cases where a worker is killed on the job. But the death of 34-year-old Jdimytai Damour, who had worked for Walmart for a mere week when he was suffocated beneath Black Friday shoppers 6 years ago, highlights just how long such appeals can go on, even when fines are relatively small. Surely one would think that the largest private employer in the U.S. could afford a $7000 fine.
Walmart spokesperson Brooke Buchanan stated that the company has made extensive changes in the years since to lessen the frenzy among shoppers and create a safer environment, including spreading sale merchandise around and staggering discount offer times. The spokesperson said, “After this horrible incident that happened six years ago, we took major steps working with crowd experts, law enforcement and people who do this for a living to see and help set up our stores.”
Walmart had net sales of $473 billion last fiscal year, so it’s unlikely that they’re disputing the penalty just to save $7,000 – even though that’s the maximum amount the Occupational Safety and Health Administration can fine a company for serious violations. In fact, Walmart has already spent millions of dollars in legal costs to fight the case. The company is more worried about possible ramifications rather than the nominal fine itself if it were upheld.
OSHA applied what’s the general duty clause as the basis for its fine against Walmart – a clause holding that employers have a reasonable responsibility to ensure their workplace is “free from recognized hazards that are causing or are likely to cause death or serious physical harm to [their] employees.”
Essentially, the agency claims that Walmart should have been able to foresee the safety hazards presented by a mob of crazed bargain shoppers lined up outside the store. An administrative law judge ruled against Walmart on this point back in 2011, though Walmart appealed that decision to to OSHA’s Review Commission, where cases can hang in limbo for years awaiting review.
OSHA regulations are generally very specific, so the agency doesn’t often use the general duty clause since it’s trickier to prove what counts as a “recognizable” hazard. Not surprisingly, employers commonly criticize citations saying the general duty clause is too vague. That’s exactly how things turned out when OSHA fined a poultry processor for violating the clause and presenting workers with ergonomic hazards. Prior to that, OSHA hadn’t attempted to use the clause for such a case in over ten years.
In the Black Friday case, Walmart would love nothing more than to defeat OSHA’s rationale, no matter what the cost (which already has been exponentially more than the original $7,000 fine). The company claims that dangers on Black Friday could not have been foreseen. If regulators prevail in their case against them, OSHA would likely have an easier time putting Walmart and other retailers on the hook for future Black Friday disasters.
In a deal to avoid prosecution, Walmart developed a new crowd control measures the year following Damour’s death. And on the regulator’s end of things, OSHA has safety guidance every year for minimizing risks of doorbuster events, which retailers are supposed to adopt in advance of Black Friday.
In an emphatic statement last week, head of OSHA David Michaels stated that “Retail workers should not be put at risk.”
Last week’s Black Friday event marked the six year anniversary since that hapless worker died under a mob of Long Island Walmart shoppers. Even though federal workplace safety regulators found the retail giant at fault in the tragedy, Walmart still holds out against the modest $7,000 fine. In fact, the case, Department of Labor v. Walmart Stores, has not moved forward since last year, remaining on appeal with a federal review commission that manages workplace safety fines. As of this weeks, OSHA lists the status of the case as “pending review.”