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Working In These Times

Thursday, Jul 8, 2010, 10:39 am

Wal-Mart: ‘Crowd Trampling’ Not an Occupational Hazard of Doorbuster Sales

BY Lindsay Beyerstein

Wooden shipping pallets are used to create a security perimeter outside a Wal-Mart store in Los Angeles, Calif., before dawn on Black Friday, 2009. After a temporary employee was trampled to death last year by a frenzy of Black Friday shoppers, Wal-Mart has beefed up security for this year's Black Friday.   (Photo by ROBYN BECK/AFP/Getty Images)

Thirty-four-year-old Wal-Mart employee Jdimytai Damour died of asphyxiation after being trampled by hundreds of frantic shoppers who rushed the door of the outlet in Valley Stream, New York on Black Friday, 2008.

The Occupational Safety and Health Administration (OSHA) cited WalMart for poor crowd control and imposed a paltry $7,000 fine. OSHA found that the store had not given its employees proper training and equipment to deal with crowds.

Since then, WalMart has spent over a million dollars fighting the fine.
The company's legal battle is costing taxpayers huge amounts of money and wasting the time of officials who could otherwise be protecting the public. OSHA told the New York Times that its legal department has already spent 4,725 hours on the case.

Why would the company go to such lengths to fight such a trivial penalty? The company has already adopted new crowd control guidelines and set up a fund to compensate victims of the Valley Stream stampede.

Wal-Mart is digging in its heels because it doesn't want the federal government to define crowd trampling as an occupational hazard that employers are responsible for mitigating.

Following the Valley Stream tragedy, OSHA announced that retail crowd crush injuries were becoming more common and issued new guidelines to protect workers. These include no-brainers like hiring security professionals for crowd control, alerting the police and the fire department ahead of time, issuing two-way radios for employees, and setting up switchback barriers instead of allowing people to form long straight lines that can act like battering rams in the event of a stampede. 

Wal-Mart's lawyers claim that OSHA is trying to retroactively hold the company responsible for standards that didn't exist when Damour died. Actually, OSHA cited Wal-Mart under the so-called general duty clause, not for violating any specific regulation or standard. By law, employers have a general duty to protect their employees from obvious hazards.

It's hard to think of a more obvious hazard than a crazed crowd of shoppers massed in a parking lot for a "Blitz Friday" sale. Wal-Mart should have been well aware of the potential dangers. By the time Damour died, there had already been non-lethal stampedes at WalMarts in 2008 and 2005.

Wal-Mart doesn't want OSHA overseeing its crowd control policies. Well, most employers would prefer not to be subject to regulation. BP didn't want the government overseeing deep sea drilling, either. Look where that got us. 

WalMart's argument doesn't pass the laugh test. Of course crowd trampling is an occupational hazard for door-buster sales. Why do you think they're called "door-busters"? Wal-Mart admits that these events are an ongoing staple of retail promotion. Year after year, stores schedule these events and advertise them to the hilt. Coping with door-busters is as much a part of working in retail as stocking shelves or working the cash register.

Surely WalMart doesn't expect to prevail in its appeal. But let's look at the big picture. To Wal-Mart, $2 million is scarcely more than $7,000. As Amanda Marcotte of Pandagon said of WalMart's strategy, "It's not about the money, it's the class warfare." The company is using frivolous litigation to punish the government for protecting the people.

Lindsay Beyerstein is an award-winning investigative journalist and In These Times staff writer who writes the blog Duly Noted. Her stories have appeared in Newsweek, Salon, Slate, The Nation, Ms. Magazine, and other publications. Her photographs have been published in the Wall Street Journal and the New York Times' City Room. She also blogs at The Hillman Blog (http://www.hillmanfoundation.org/hillmanblog), a publication of the Sidney Hillman Foundation, a non-profit that honors journalism in the public interest.

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