Watch your back if you shop or work at wal-mart on Black Friday! Wal - Mart can careless if you get hurt. Ive seen it first hand. Five years after a worker was killed in a crush of shoppers on Black Friday, Walmart still hasnt paid the $7,000 it was fined for allegedly failing to protect employees on the biggest shopping day of the year. Sitting on appeal with a review commission, the case of Jdimytai Damours death highlights how corporations can choose to fend off modest penalties over workplace dangers for years on end, according to occupational health experts. For a company with sales of $466 billion last fiscal year, the $7,000 fine from the Occupational Safety and Health Administration represents little more than a single stores rounding error. Walmart would have vastly outspent that sum simply in legal fees devoted to fighting the penalty. But the worlds largest retailer is less concerned with the monetary fine than with the broader implications of the case. A negative ruling could compel Walmart and other retail companies like it to take additional safety precautions for workers or face new liabilities. Its not about the penalty, said Celeste Monforton, a former OSHA analyst whos now a lecturer at George Washington University. Its this interest in seeing how far Walmart can push back against the decision. Walmart spokesman Randy Hargrove said the company has made a lot of changes since 2008. Since that time, weve developed comprehensive plans in stores around the country, and weve worked with nationally recognized crowd management experts to do it, Hargrove said. That includes planning carefully for how customers enter and exit stores, Hargrove said, as well as guaranteeing customers certain products to minimize the frenzy. Damour died after customers streamed into the Valley Stream, N.Y., Walmart on Nov. 28, 2008. The 34-year-old was trying to hold back a crowd before sunrise on Black Friday when the stores glass doors gave way and he was overrun. Damour had recently been hired through a temp agency and only had spent about a week on the job when he was asphyxiated, his lawyer later said. OSHA, the branch of the Labor Department responsible for enforcing workplace safety, investigated Damours death and cited Walmart for failing to adequately control the crowds. An agency official called the events unusual but not ... unforeseen, given the history of shopper hysteria surrounding Black Friday at Walmart and other big-box retailers. OSHA said Walmart failed to properly train its workers in how to handle a crowd of 2,000 that had formed for its own much-hyped shopping blitz. Legal filings in the case paint a scene of mayhem. The crowd outside became unruly at 3 a.m. and continued to grow for two more hours. Right around the 5 a.m. opening time, the door came off its hinges and the crowd poured in. Walmart employees climbed atop vending machines to escape the crush. (For a full narrative of the incident, read John Seabrooks 2011 New Yorker feature on the behavior of crowds.) There was a single security guard at the door at the time, according to case files. Employees attempted to surround the fallen employee and protect him from the incoming crowd of customers, one filing reads, laying out Walmarts version of events. [S]ome customers turned back into the vestibule and vandalized the stores security devices, causing them to become unbolted from the floors. Other customers hoarded televisions and attempted to resell them on the sales floor. HuffPost readers: Will you be working on Thanksgiving this year? Tell us about it. Theres no specific OSHA rule that says you have to protect employees from throngs of bargain hunters. But under whats known as the general duty clause, OSHA can argue that a company reasonably could have been expected to take certain precautions for the health and safety of its workers in specific situations. OSHA was essentially saying that Walmart should have known such a death could happen on Black Friday. A meager sum when measured against a mans life, $7,000 is the maximum fine that OSHA can levy under current law for whats deemed a serious safety violation. The fines are much higher for willful failures, but such violations are very difficult for the agency to prove, especially when squaring off with high-priced lawyers hired by the alleged offenders. Walmarts litigation in the Damour case has been handled in part by the elite Gibson Dunn & Crutcher, the same firm thats representing Chevron in its Ecuador battles. Walmart appealed the OSHA fine, arguing that the dangers of their Black Friday crowds couldnt have been predicted. OSHA officials later told The New York Times that the agency had devoted 4,700 hours of legal work to litigating the $7,000 penalty. An administrative law judge eventually upheld the fine, ruling that the Black Friday crowds should have been a recognized hazard for the retailer. (Seabrook, over at the New Yorker, called this ruling a victory for the often-vilified crowd, since it made Walmart culpable in the death.) But Walmart hadnt exhausted its legal options. In 2011, the company appealed the fine to the Occupational Safety and Health Review Commission, an agency wholly independent from OSHA that can choose to consider appeals. The case remains there to this day. Until a penalty is affirmed, a company doesnt have to pay the fine or technically even fix the problem. It can take 10 years, said Randy Rabinowitz, a lawyer, work safety expert and former counsel on the Senates labor committee. The average length it takes to complete a case is obscenely long. And the longer [Walmart] appeals this case, the longer they get a pass. Melik Ahmir-abdul, a spokesman for the review commission chair, said the commission is sometimes hobbled by the Senate not confirming nominees; for several months this year, the body lacked a quorum and couldnt decide cases. Ahmir-abdul said the Walmart case isnt on this years remaining docket, meaning the earliest it could be decided is 2014. If the fine is upheld, Walmart would essentially be deemed negligent in Damours death, as far as OSHA is concerned. That could pressure the company -- and other retailers, in theory -- to invest in greater safeguards against shopping crowds in order to shield itself from liability in similar cases, meaning more staff, more planning and perhaps even more infrastructure. In other words, if its ultimately deemed that Walmart should have foreseen Damours death in 2008, then it will be much easier for the government to say Walmart should have foreseen another tragedy like it. In 2009, as part of a deal to avoid criminal charges, Walmart launched a new crowd control plan for its stores and also created a compensation fund for victims of the 2008 crush. Since then, workers have received additional training in how to handle the mass of shoppers, as many testified during hearings on the OSHA fine. Like many other retailers, the company has also made big changes to its Black Friday start times. With holiday deals now kicking off at 6 p.m. on Thanksgiving day, plenty of Walmart workers will be punching in before the rest of us have cut into the pumpkin pie.https://youtube/watch?feature=player_embedded&v=3Psva5Z1qTw
Posted on: Sat, 22 Nov 2014 03:44:09 +0000
Trending Topics
Recently Viewed Topics
© 2015