Nearly four years after a Walmart worker was trampled to death by a stampede of Black Friday shoppers, Walmart Stores Inc. continues to fight a $7,000 fine by the Occupational Safety and Health Administration that it failed to control the crowd of shoppers.
Walmart has spent millions contesting the fine and a 2011 ruling by an independent administrative judge to uphold the penalty. The appeal is pending.
Walmart spokesman Steve Restivo said Wednesday in an e-mail that 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."
OSHA has not enacted any new rules about crowd control since the 2008 death of Jdimytai Damour at a suburban New York Walmart, although it now offers employers recommendations about how to safely manage crowds during sales. The recommendations include using police or security guards at store entrances on big sale days, opening earlier, and requiring employees to instruct crowds from raised platforms.
The National Retail Federation has also promoted a set of crowd control best practices. Following the death, Walmart undertook improved crowd control strategies at its stores offering customers in line vouchers for sale merchandise to avoid frenzied onslaughts of shoppers. In recent years, there have been no reports of serious injuries or deaths during Thanksgiving sales.
OSHA fined Walmart after Damour, a Haitian immigrant, was crushed when about 2,000 early-morning shoppers ripped doors off hinges and rushed into the Valley Stream, N.Y., store for the "Blitz Friday" sale on the day after Thanksgiving. Damour died before he reached the hospital.
OSHA regulations say employers are legally responsible for providing a workplace free of "recognized hazards that are likely to cause serious injury or death." Investigators levied a $7,000 fine against Walmart, OSHA's maximum penalty for violating the "recognized hazards" rule.
Walmart appealed the OSHA fine to an Occupational Safety and Health Review Commission judge. Administrative Judge Covette Rooney ruled last year that the company's "precautions to protect its employees were minimal and ineffective."
Walmart's appeal of Rooney's decision will be decided by a 3-member commission.
Glenn Demby, a lawyer and chief editor of SafetyXChange, a blog promoting the safety compliance industry, said Walmart has said that crowd control problems that resulted in Damour's death were not a "known hazard."
Demby said that may be difficult for them to prove, particularly because "Blitz Friday" was so heavily promoted. "They may be wrong, or they may be right," he said, "but they obviously consider this to be worth a couple million dollars in attorney fees."