Thought Leadership


A cheap shot

June 4, 2009
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Last month, OSHA took a cheap shot at the company ranked numero ono on the Fortune 500.

The agency’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 event at Wal-Mart’s Valley Stream, N.Y. store, about 20 miles east of Manhattan.

“Doorbusters” these mob scenes are called in the retail biz.

Jdimytai Damour (Jimmy-tree) 34, had only been on the job a week as a so-called “seasonal worker” and died of asphyxiation. Hundreds of shoppers who smashed through electronic doors had to step around, over, or on his body to get through the store’s entrance. $7,000 is the maximum penalty that 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.

$7,000 is a pathetic cheap shot. At Wal-Mart, at Mr. Damour’s life, and at his memory.

This story isn’t about Wal-Mart — even though OSHA’s acting Area Director for Long Island Anthony Ciuffo said, “The store should have recognized, based on prior ‘Blitz Friday’ experiences, the need to implement effective crowd management to protect its employees. Countered Daphne Moore, a spokesman for the company, “There is no OSHA or retail industry guidance that would have alerted us to this type of unforeseeable hazard.”

Of course, in typical reactionary fashion, Wal-Mart, as part of a settlement agreement with the Nassau County District Attorney’s office to avoid prosecution, is now employing expert crowd security consultants who have worked NFL Super Bowls, Olympic games, concerts and national political convention to devise “protocols set up to be the gold standard for crowd management” in the retail industry, according to Nassau County District Attorney Kathleen Rice.

Wal-Mart will implement the new plan at its 92 New York stores as part of the deal with the D.A.’s office to avoid criminal prosecution. The deal also calls for Wal-Mart to set up a $400,000 victims’ compensation and remuneration fund (11 others, including a pregnant women, 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 after-the-fact corporate social responsibility.

And let’s hope those high schoolers receive the training in security and crowd control Mr. Damour never got.

This story isn’t about the Nassau Country D.A. allowing Wal-Mart to get off with charity donations, a smattering of youth hires, and developing the “gold standard” of retail crowd management. A $10,000 fine is the max the D.A. could have sought.

And the tale is not about OSHA. 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.

No, this is something absurd and insulting. Coolly, legally, calculating by the books the price of life. It cannot involve emotion, compassion or accuracy. What is an “accurate” price tag for a preventable death, anyway?

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 Corp. analysis. Average comp for cases settled out of court was $415,000. Beneficiaries of fire fighters and police who die on the job receive from the federal government $250,000 for pain and suffering. 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. Every family — 32 — who lost a loved one in the Virginia Tech mass shooting received the exact same amount: a little more than $200,000 each.

The mathematics of loss doesn’t add up. And for some, it simply doesn’t matter at all. There were about 11 families so clinically depressed about 9/11 that they never filed a claim to the compensation fund. They did nothing. Those 11 families would have received on average $2 million each tax-free.

OSHA’s $7,000 fine of course is not intended in any way as compensation for a life lost. But it is a cold, bureaucratic, black and white insult.

It’s ridiculous to read the headline of OSHA’s press release stating a $374.5 billion company has been hit with a $7,000 spitball of a penalty for the death of one of its employees trampled on the job. And like it or not, the $7,000 is interpreted as the price tag for this fatality. That’s cold.

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 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.

I know, I know, these discrepancies can all be explained by legalities, technicalities. But life is precious and fleeting enough as it is, and due more respect, dignity and “valuation,” especially when a man is just trying to do what he’s told to do on the job.

This story has subplots. The victim’s family has filed a lawsuit against Wal-Mart, the mall owner, and the security company whose guards were patrolling the mall on that day after Thanksgiving last year. The case could be tied up in court for years. The families of the six people killed in the 1993 World Trade Center bombing are still waiting for their day in civil court.

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 — come on, that’s no deterrent for a Fortune 500 corporation. Such insignificant consequences will not modify corporate behavior or change corporate culture.

How about a $1 million flat minimum for each workplace fatality due to willfull negligence, and $500,000 due to serious safety failures? No bargaining down. Mandatory referral to the Justice Department and jail time with no parole for those found responsible. Some small contractors will go out of business, sure. There are many reasons businesses fail. Take a risk, put lives at risk, be ready to pay a consequence equal to the stakes raised by the risk.

I’d like to see a memorial, a small white cross with a marker perhaps, to Jdimytai Damour set up immediately inside those electronic doors of Wal-Mart’s Valley Stream store, so every shopper entering might have pause to consider, “What the hell happened here?” Or maybe their kids will pop the question.

I’d like to see OSHA get with the 21st century service-driven “new’ economy and 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.

Do something substantial. Don’t take literal and figurative cheap shots that only degrade all involved — the victim, the victim’s family, OSHA’s credibility, the company that gets off quickly and easily, lawmakers and attorneys and the legal framework they hide behind, all of us who quickly turn the page and forget another life lost unnecessarily.

Dave Johnson, ISHN Editor
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