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Steven M. Lee, PC

Q:
I am a retail employee and suffered injuries during our Black Friday sales from rowdy crowds—is this an OSHA issue, or simply bad luck?

A:

Over the last decade, retailers have realized the extraordinary power that Black Friday sales hold over consumers, and have played off this power in increasing intensity to maximize their profits year after year. While many stores host a steady stream of excited shoppers throughout the day, others—especially big box retailers—play up the event to the point where frenzied crowds gather, ready to pounce on deals the moment the doors open.

Six years ago on Long Island, a Walmart employee was trampled to death as shoppers frantically broke the doors of the store down. Thirty-four-year-old Jdimytai Damour, employed for only one week prior to his death, asphyxiated below the stampeding crowd. Walmart denies any wrongdoing, and continues to fight the $7,000 fine levied against the retail giant by the Department of Labor. To date, the company has spent over $2 million fighting the case.

The Occupational Safety and Health Administration (OSHA) used an uncommon clause in this particular case, the general duty clause, to bring the largest allowable fine against Walmart. This clause maintains that employers have a duty to protect their workers by offering a workplace that is free from hazards and conditions that could cause death or serious harm to their employees. While general duty clauses are often challenging to prove in court, OSHA claims that Walmart should have foreseen the dangers of a massive, largely uncontrolled crowd—and an ALJ (administrative law judge) agreed.

Just last year, OSHA drafted a letter intended for CEOs of large retailers, urging proper crowd management and safety guidelines for busy shopping days. If your injury was the result of poor crowd control, we urge you to reach out to your local OSHA office. You could make a difference for your coworkers during future busy shopping days.

 

Steven M. Lee
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