US Department of Labors OSHA applauds decision upholding citation against Wal-Mart Stores Inc. in crowd management fatality case

WASHINGTON – The U.S. Department of Labor's Occupational Safety and Health Administration today applauded a ruling by Chief Administrative Law Judge Covette Rooney of the independent Occupational Safety and Health Review Commission upholding the citation and full penalty issued to Wal-Mart Stores Inc. for inadequate crowd management following a November 2008 trampling death of a worker at one of the company's retail locations in New York.

"This is a win for both workers and consumers. Its only fitting that today, 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 protect the safety and health of workers from clearly recognized hazards," said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels. "Todays ruling supports OSHAs 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. If not properly managed by retailers, a large crowd poses a significant threat to the lives of workers and customers."

In May 2009, OSHA cited Wal-Mart Stores Inc. for inadequate crowd management, concluding an investigation launched after a worker was trampled to death on 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.

Under the Occupational Safety and Health Act's general duty clause, OSHA issued Wal-Mart Stores Inc. one serious citation for exposing workers to the recognized hazards of asphyxiation or being crushed by a crowd. The citation carried a proposed fine of $7,000, the maximum penalty amount for a serious violation allowed under the law. A violation is serious when death or serious physical harm is likely to result from a hazard about which the employer knew or should have known.

"During the course of OSHA's investigation, the company implemented crowd control measures storewide, and the National Retail Federation also promoted those practices to its members," said Michaels. "We praise that action, and urge all retailers to implement crowd management practices ahead of future sales events likely to draw large crowds."

To read a letter from Assistant Secretary Michaels to retailers on crowd control, visit http://www.osha.gov/ooc/blackfridayletter.pdf. Additionally, an OSHA fact sheet on crowd management measures is available online at https://www.osha.gov/OshDoc/data_General_Facts/Crowd_Control.html.

Wal-Mart Stores Inc. disputed the May 2009 OSHA citation before the OSHRC, 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, who ultimately issues a decision. Wal-Mart Stores Inc. has 20 days from the date Rooney's decision is docketed with OSHRC to appeal to its commissioners, whose members are presidential appointees. For more information about the commission, visit http://www.oshrc.gov.

OSHA's safety inspection was conducted by the agency's Long Island Area Office. The case was litigated for OSHA by Jeffrey Rogoff, Darren Cohen, Kathryn L. Stewart, Sudwiti Chanda and Diane C. Sherman of the Labor Department's Regional Office of the Solicitor in New York.

Under the OSH Act of 1970, OSHA's role is to promote safe and healthful working conditions for America's men and women by setting and enforcing standards, and providing training, outreach and education. For more information, visit http://www.osha.gov.

Solis v. Wal-Mart Stores Inc. OSHRC docket number: 09-1013