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EDITORIAL COMMENTS: A cheap shot

July 8, 2009
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Last month, OSHA’s area office for Long Island, New York, cited Wal-Mart Stores, Inc., $7,000 for inadequate crowd control following the November 28, 2008, death of a temporary Wal-Mart employee. The man was knocked to the ground and trampled by a frenzied mob of some 2,000 bargain-hunters in a pre-dawn, Black Friday holiday sales stampede at Wal-Mart’s Valley Stream, N.Y., store, about 20 miles east of Manhattan.

Jdimytai Damour (Jimmy-tree), 34, had only been on the job a week as a so-called “seasonal worker” and died of asphyxiation. $7,000 is the maximum penalty OSHA can cite for a single serious violation, which was what the tragedy was judged to be. $374.5 billion was the sales total racked up by Wal- Mart for the fiscal year ending January 31, 2008. Inspectors used Section 5 of the Occupational Safety and Health Act of 1970, the so-called general duty clause, to cite Wal-Mart the maximum $7,000 fine for a serious violation of the clause.

There’s something pathetic here, though perfectly legal, about a $374.5 billion business being fined $7,000 for an employee’s gruesome death on the job.

A belated gold standard

In all-too-typical reactive fashion, Wal-Mart, as part of a settlement agreement with the Nassau County District Attorney’s office to avoid prosecution, has gone out and hired the finest crowd security consultants in the country. They’ve worked NFL Super Bowls and Olympic games. Now they’ll devise “protocols set up to be the gold standard for crowd management” in the retail industry, according to Nassau County District Attorney Kathleen Rice.

A $10,000 fine is the max the D.A. could have sought.

Wal-Mart will implement the new plan at its 92 New York stores as part of the deal with the D.A.’s office. The deal also calls for Wal-Mart to set up a $400,000 victims’ compensation and remuneration fund (11 others, including a pregnant woman, were injured in the crush), contribute $1.2 million for Nassau County’s Youth Board, donate $300,000 to the United Way of Long Island, and hire 50 high school students every year to work in its five stores in the county. Call it knee-jerk corporate social responsibility.

Here’s hoping the high schoolers receive the training in security and crowd control Mr. Damour never got.

Monetizing life

This story isn’t about Wal-Mart, OSHA, or the Nassau Country DA. It’s about the impossible and demeaning task of putting a price tag on human life. Here there can be no “gold standard.”

The mathematics of loss doesn’t add up. In 25 major aviation accidents between 1970 and 1984, the average compensation for victims who went to trial was $1 million, according to a Rand Corporation analysis. Average comp for cases settled out of court was $415,000. The wife of a currency trader killed in the 9/11 attacks on the Twin Towers was eligible for $138,000. The widow of a security guard killed in Tower 1 will get $444,010.

For some, money doesn’t matter. There were about a dozen families so clinically depressed about 9/11 they never filed a claim to the compensation fund. Those families would have received on average $2 million each tax-free.

OSHA’s $7,000 fine of course is not intended to compensate for a life lost. But it’s ridiculous to read OSHA’s press release stating a $374.5 billion company has been hit with a $7,000 penalty for the death of one of its employees trampled on the job like a human doormat. Like it or not, the $7,000 is interpreted as the price tag for this fatality. It’s grotesque.

It’s all legit

EPA recently fined an apartment complex owner and property management firm more than $300,000 for failing to disclose information about lead paint to tenants. Failure to simply disclose info about lead paint is 40 times worse of a transgression than having an employee stampeded to death? OSHA recently fined a Texas piping manufacturer $146,500 — more than 20 times the Wal-Mart fine — for 29 serious violations, though no one was injured or killed.

These discrepancies are legitimized by laws that are on the books. They also cheapen respect for life and dignity.

Stronger medicine

In Congress, there is a proposal to increase the OSHA serious/fatality violation penalty maximum to $12,000, allowing up to $50,000 for a fatality. $7,000, $12,000, $50,000 — no matter how many zeroes you affix to the penalty, it won’t modify corporate behavior or change corporate culture. As someone once told me, only greed (see financial meltdown) or fear (of a brand meltdown) will do that.

OK, so how about mandatory referral to the Justice Department and jail time with no parole for managers found guilty of willfully or seriously neglecting their duty to protect employees when the outcome is an on-the-job fatality?

How about a memorial, a small white cross with a marker perhaps, to Jdimytai Damour set up inside the electronic doors of Wal-Mart’s Valley Stream store. Shoppers entering might stop to consider, “What the hell happened here?” Or maybe their curious kids will ask. I’d like to hear the explanation.

And OSHA needs get with the 21st century service-driven “new” economy. The symbolism of the Wal-Mart penalty is unnecessary. Issue retail industry safety and health guidelines. Put more of a priority on evaluating work environments where public behavior can be hazardous, such as retailing, health care (patients and visitors), and highway construction work zones.

Don’t lob spitballs at battleships and in doing so belittle lives lost. Do something of consequence. What’s $7,000 to a $374.5 billion multinational? A dwarf kicking grains of sand at a giant. Stop degrading victims, victims’ families and OSHA’s credibility. Rewrite the legal technicalities that lawmakers, attorneys and companies hide behind. Stop making it so easy for all of us to quickly turn the page and forget another life lost unnecessarily.

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