Federal job safety officials have been stunned by the million dollar legal fight Wal-Mart Stores has mounted to reverse a $7,000 fine stemming from the trampling death of a store employee in 2008, The New York Times reports.
Jdimytai Damour, a 34-year old temporary worker, died from asphyxiation when he was crushed by a surge of shoppers who pushed through the doors of a Valley Stream, N.Y., Wal-Mart before the store opened.
The retailer had already reached a settlement with Nassau County, N.Y., district attorney several weeks before the Occupational Safety and Health Administration imposed the penalty, agreeing to establish a $400,000 fund for customers injured in the stampede, donate $1.5 million to programs in the county and adopt new crowd control measures at its New York stores. The company has since introduced a new crowd management protocol at all of its U.S. stores.
But by contesting the fine, Wal-mart is claiming that “crowd-trampling” should not be considered an occupational hazard for retail stores.
The agency has accused Wal-Mart of failing to provide a workplace “free from recognized hazards,” The Times reports:
OSHA officials acknowledge that the agency is seeking to establish for the first time that an unruly crowd is an occupational hazard that can cause death or serious injury — and that employers must therefore develop plans to protect workers against such a hazard.
Federal officials say that in its settlement with Nassau County prosecutors, Wal-Mart had in effect already admitted that it had that responsibility and agreed to three years of monitoring. So OSHA officials question why the retailer is putting up such a fight.
The Labor Department is also frustrated that the legal battle with Wal-Mart has consumed 17 percent of its New York office’s available attorney hours for the past five months, and OSHA officials told The Times they have rarely seen a legal fight like this over a fine less than $10,000.
But the retailer is concerned about the precedent the fine may set.
“OSHA wants to hold Wal-Mart accountable for a standard that was neither proposed nor issued at the time of the incident,” David Tovar, a Wal-Mart spokesman, told the Times. “The citation has far-reaching implications for the retail industry that could subject retailers to unfairly harsh penalties and restrictions on future sales promotions.”
Wal-Mart’s lawyers are scheduled to go before a federal appeals commission Wednesday.
