Back in 2010, the company said it was fighting the $7,000 penalty because it felt that an employee being trampled by a crowd of shoppers at an annual sales event heavily marketed and advertised by your company doesn’t count as an occupational hazard and that assessing the fine “has far-reaching implications for the retail industry that could subject retailers to unfairly harsh penalties and restrictions on future sales promotions.”
The case is currently stuck in appeal, and one former OSHA analyst tells Huffington Post that this is a case of Walmart flexing its muscles to prove it’s the biggest bruiser in the room.
“It’s not about the penalty,” said the former OSHA staffer. “It’s this interest in seeing how far Walmart can push back against the decision.”
Walmart says it has made changes to its crowd management strategies for Black Friday — such as actually trying to manage crowds, rather than let them pile up against the front door because that looks awesome on the news reports the next day. But just because you put measures in place after the fact doesn’t mean you shouldn’t have to pay for the initial fine.
OSHA said that Walmart failed to provide adequate training for employees on how to best handle the thousands of shoppers waiting to get into the store for the pre-dawn opening time on Black Friday 2008. The worker who was killed in the stampede had been hired through a temp agency only a week earlier. The agency claims that while this sort of tragedy was unusual, it was certainly a possibility that Walmart should have been aware of after years of Black Friday sales.
Even though the fine — the largest OSHA can issue in such a case without proving that the safety violation was willful — has been upheld by an administrative law judge, Walmart appealed that ruling to the Occupational Safety and Health Review Commission, an independent group set up to rule on challenges to OSHA penalties and citations.
That was in 2011. There has been no noteworthy movement since.
“It can take 10 years,” one lawyer tells HuffPo. “The average length it takes to complete a case is obscenely long. And the longer [Walmart] appeals this case, the longer they get a pass.”
A rep for the OSHRC says the Walmart case is not on the 2013 docket, and so won’t be decided until next year at the earliest.