WASHINGTON -- This coming Black Friday will mark six years since a worker died beneath a throng of shoppers at a Walmart on Long Island. Although federal regulators faulted the retail giant in the tragedy, Walmart still hasn’t been compelled to pay the modest $7,000 fine that was levied against it.
The case, Department of Labor v. Walmart Stores, has not moved forward since HuffPost reported on it a year ago -- on appeal with a federal review commission that handles workplace safety fines. As of this writing, the commission lists the status of the case as “pending review.”
The case was first referred to the commission three and a half years ago. A spokeswoman for the commission said it does not comment on the timeline for pending cases.
It’s common for employers to appeal whatever penalties the Labor Department’s safety inspectors issue against them, including when workers are killed on the job. But the case of 34-year-old Jdimytai Damour, who had worked at Walmart for only a week when he was asphyxiated beneath the Black Friday crowd, underscores just how long those appeals can drag on, even in cases where the fines are comparably small.
Brooke Buchanan, a Walmart spokeswoman, said the retailer has made significant changes in recent years to minimize the frenzy among shoppers and make for a safer atmosphere, including spreading out merchandise that's on special and staggering sales times.
"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," Buchanan said.
As HuffPost previously reported, Walmart, which had net sales of $473 billion last fiscal year, probably isn’t disputing the penalty in order to save $7,000, the maximum amount the Occupational Safety and Health Administration can fine a company for serious violations. Indeed, the company has already spent millions of dollars in legal costs just to fight the case. For Walmart, more significant than the nominal fine itself would be the ramifications if the fine were upheld.
OSHA used what’s known as the general duty clause as the foundation for its fine against Walmart. The clause holds that employers have a basic 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 [their] employees.”
In essence, the agency argues that Walmart should have foreseen the dangers presented by a mass of excited shoppers waiting at the store’s doors. An administrative law judge agreed back in 2011, though Walmart appealed that decision to the Occupational Safety and Health Review Commission, where cases often wait years for review.
OSHA regulations tend to be very specific, and the agency doesn’t often reach for the general duty clause because it isn’t so easy to prove what should be a “recognizable” hazard. Employers, unsurprisingly, often criticize citations using the general duty clause as too vague. That's what happened when OSHA cited a poultry processor recently for violating the clause and putting workers in danger of ergonomic hazards. Before that, OSHA hadn’t tried to wield the clause in such a case in more than a decade.
In the Black Friday case, Walmart would be more eager to defeat OSHA's arguments than to avoid the $7,000 penalty. The company has argued that the dangers on Black Friday could not have been predicted. If regulators ultimately succeed in their case, OSHA would theoretically have an easier time putting Walmart and other retailers on the hook for Black Friday disasters in the future.
In a deal to avoid prosecution, Walmart agreed to develop a new crowd control plan the year after Damour's death. For its part, OSHA has started issuing guidance each year on how stores can handle their sales events safely. The agency recently sent letters to the major retailers urging them to adopt their own plans ahead of Black Friday.
“Retail workers should not be put at risk,” David Michaels, the head of OSHA, said last week.
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