Administrative Law Judge Upholds OSHA Citations for Wal-Mart Crowd Management Fatality Case

On March 25, Chief Administrative Law Judge Covette Rooney of the Occupational Safety and Health Review Commission upheld the citation and full penalty issued to Wal-Mart Stores Inc. for inadequate crowd management following the November 2008 death of an employee.

In May 2009, OSHA cited Wal-Mart Stores Inc. following an investigation launched after a worker was trampled to death Nov. 28, 2008, at a Wal-Mart store in Valley Stream, N.Y. The worker was knocked to the ground and crushed by a crowd of about 2,000 shoppers surging into the store for its annual “Blitz Friday” holiday sales event.

OSHA’s inspection found that the store’s workers were at risk of being crushed by the crowd due to the store’s failure to implement reasonable and effective crowd management practices. Those practices would have provided the store’s workers with the necessary training and tools to safely manage a large crowd of shoppers. The agency issued Wal-Mart one serious citation and a $7,000 proposed fine under the general duty clause for exposing workers to the recognized hazards of asphyxiation or being crushed by a crowd.

Wal-Mart disputed the OSHA citation before the Occupational Safety and Health Review Commission (OSHRC). OSHRC is an independent federal agency created to decide contests of citations or penalties resulting from inspections of American workplaces by OSHA. An employer who is cited by OSHA for an alleged workplace health or safety violation(s) can contest the citation(s) and have the case heard by a Commission administrative law judge.

Wal-Mart Stores Inc. has 20 days from the date Judge Rooney’s decision is docketed with OSHRC to appeal to its commissioners. EHS Today was unable to reach Wal-Mart for comment.

Michaels: “This is a Win”

OSHA applauded the ruling to uphold the fine.

“This is a win for both workers and consumers. It’s only fitting that today, on the 100th anniversary of the deadly Triangle Shirtwaist Factory fire in New York City where 146 workers lost their lives, a judge affirmed OSHA’s right to use the general duty clause of the Occupational Safety and Health Act to enforce the law and protect the safety and health of workers,” OSHA Administrator Dr. David Michaels said March 25.

“Today’s ruling supports OSHA’s position that, even in the absence of a specific rule or standard, employers are still legally responsible for providing a place of employment free of recognized hazards that are likely to cause serious injury or death,” said Michaels. “If not properly managed by retailers, a large crowd poses a significant threat to the lives of workers and customers.”

Michaels added that during the course of OSHA’s investigation, Wal-Mart implemented crowd control measures storewide. The National Retail Federation also promoted those practices to its members.

“We praise that action, and urge all retailers to implement crowd management practices ahead of future sales events likely to draw large crowds,” he concluded.

Michaels recently wrote a letter, which can be downloaded as a PDF, to retailers on crowd control. An OSHA fact sheet on crowd management measures is available online at https://www.osha.gov/OshDoc/data_General_Facts/Crowd_Control.html.

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