WASHINGTON -- Back in 2008, a worker named Jdimytai Damour died beneath a crowd of shoppers who poured through the doors of a Long Island Walmart on Black Friday. The tragedy made national news and prompted an investigation by the Occupational Safety and Health Administration.
OSHA ultimately faulted Walmart for Damour's death, arguing that the company had failed to provide him with a safe workplace. The agency fined the world's largest retailer $7,000, the maximum amount it could levy for a serious violation. As The Huffington Post reported in November, Walmart has been fighting the relatively tiny fine on appeal ever since.
That fight is now over.
The Occupational Safety and Health Review Commission, which is tasked with reviewing such cases, confirmed to HuffPost that Walmart withdrew its appeal on Wednesday, meaning the fine will stand. The company hasn't yet paid it, but Walmart spokesman Randy Hargrove said it plans to.
David Michaels, the head of OSHA, applauded Walmart's decision on Thursday in a statement to HuffPost.
"We were delighted to hear that Walmart has withdrawn its appeal of our citation and fine," Michaels said.
For Walmart, which had sales of $482 billion in fiscal year 2015, the appeal was never about the money. The company has spent more than $1 million in legal fees just fighting the $7,000 fine, The New York Times reported. Instead, the appeal was about principle.
OSHA used what’s known as the general duty clause to fault Walmart for the death. According to the clause, employers have a general responsibility to provide a workplace that’s "free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees." OSHA basically said that Walmart should have foreseen what could go wrong with a Black Friday crowd, and an administrative law judge agreed.
Because it's not very specific, OSHA doesn't often hang its citations on the general duty clause; employers like to say that it's not a strong enough foundation for an argument that finds them at fault. In fighting the fine, Walmart argued that the circumstances of Damour's death never could have been predicted.
Although Walmart is dropping its appeal, Hargrove said the company still believes the citation wasn't warranted.
"We maintain our position that the citation from OSHA should not have been issued, because it imposed standards that did not exist and were unknown to the retail industry at the time of the incident," he said. "With the likelihood that this would not conclude for a long time, we decided to put it behind us and withdraw the appeal."
Walmart may have simply been cutting its losses in deciding to give up the fight. In another high-profile case, OSHA fined SeaWorld for the death of a whale trainer killed during a performance in 2010. The agency based its citation on the general duty clause. Like Walmart, SeaWorld fought that fine for years -- and lost on appeal last year.
Another consideration Walmart may have had in dropping its appeal is public perception. Put simply, it looks bad to spend years fighting a small fine when a man has died. (HuffPost, for one, was starting to make a Thanksgiving tradition out of reporting on this case.) Hammered for years over its pay and working conditions, Walmart recently took a big step in rehabbing its image when it announced it would have a $10 minimum wage in its stores by next February.
After Damour's death, OSHA began issuing guidance to retailers every year on how to handle Black Friday shoppers, and retailers started taking the possibility of disaster more seriously. Walmart consulted with experts to develop its own crowd-control measures. It also started staggering sales on particular items to limit the mayhem. Hargrove said Walmart's measures have served "as a model for the retail industry."
"More important than the penalty is knowing that Walmart and other large retailers recognize the potential for danger," OSHA's Michaels said.
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