Wal-Mart Stores has spent a year and an estimated $2 million to contest a $7,000 fine that the Occupational Health and Safety Administration (OSHA) ordered after shoppers trampled an employee to death in one of its New York stores.
On the day after Thanksgiving in 2008, a 34-year-old temporary employee died from asphyxiation when a stampede of "Black Friday" shoppers burst through the doors and trampled the employee. The crowd of around 2,000 people had been lined up outside the store for hours before its 5 a.m. opening. Eleven customers were also injured in the melee.
In May 2009, OSHA issued a citation to Wal-Mart for inadequate crowd management and fined the company the maximum amount possible. The agency said Wal-Mart violated its general duty to employees to provide a workplace that is free from recognized hazards.
Specifically, OSHA accused Wal-Mart of failing to take sufficient steps to protect employees from a situation that was likely to cause death or serious physical harm because of "crowd surge or crowd trampling." The agency claimed Wal-Mart should have recognized the need to implement effective crowd-management procedures based on their prior Black Friday experiences.
Wal-Mart is contesting the fine, claiming that regulators are trying to enforce a vague standard of protection that was not issued or proposed at the time of the incident. A Wal-Mart spokesman also said the company views the death as an "unforeseeable incident."
Through this process, OSHA is seeking to establish that unruly crowds are an occupational hazard, which would require retailers to develop crowd-control plans to protect employees against such a hazard. Wal-Mart argues that doing so would subject retailers to unfairly harsh penalties and restrictions on future sales promotions under the watchful eye of federal agencies. They are fighting the citation to avoid current and future liability.
When Workers' Comp is Unjust to Employees
Instances like this demonstrate how the "compensation bargain" of workers' compensation can be unfair to employees. Because employees give up their right to sue their employer for negligence in exchange for workers' compensation, employers are protected from their own negligence. In cases like this, employees, or their survivors, should have the ability to bring personal injury claims against employers.
If you feel you may be entitled to workers' compensation, it is important to promptly contact a lawyer experienced in this area. Also, if you feel you may be entitled to personal injury claims against parties responsible for your injuries, promptly contact an attorney to help you determine what your rights are.