Today in Why Wal-Mart Sucks

[ESF]

Happy Black Friday!

consumerist.com/2014/11/25/walmart-still-avoiding-paying-7000-fine-for-worker-killed-by-black-friday-shoppers-in-2008/

Walmart Still Avoiding Paying $7000 Fine For Worker Killed By Black Friday Shoppers In 2008

In 2008, a Walmart employee was killed when a mob of deal-desperate Black Friday shoppers tore the store’s doors from their hinges and stormed inside, trampling him to death. The chain was eventually fined $7000 for their role in the employee’s death — but six years and $2 million later, the world’s largest retailer has yet to pay up.

The fine was the result of an investigation by the Occupational Safety and Health Administration (OSHA), which found that Walmart did indeed put employees at risk by failing to put “reasonable and effective” crowd management in place. When the fine — the maximum possible — was levied in May of 2009, Walmart had 15 days either to pay or to appeal.

The chain, which brought in over $475 billion in revenue last year, chose to appeal the $7000 fine. A year later, in 2010, they’d spent more than $2 million on the appeal. Their argument went to the Occupational Safety and Health Review Commission — an independent group set up to rule on challenges to OSHA penalties — back in 2011. And it’s been sitting there ever since.

The appeals process can take years, as the Huffington Post explained today. And it’s clearly not about the money but is, for Walmart, about the principle of the thing.

OSHA regulations, the HuffPo explains, tend to be very specific. You can’t use X chemical without ventilation, or allow people to do Y task without safety equipment, or permit employees to spent more than Z hours per week in certain kind of conditions.

But when OSHA found Walmart at fault for the employee’s death, they used something called the general duty clause as the basis for their fine. The general duty clause is exactly what it sounds like: a piece of regulation about workplaces having a general duty to provide safe working conditions. Specifically, the clause says that employers have a responsibility to make their workplaces “free from recognized hazards that are causing or are likely to cause death or serious physical harm to [their] employees.”

It’s easier to pinpoint and prove a specific kind of harm. Demonstrating that an employer should have been aware of a more nebulous “recognized hazard” is a harder point to prove. And employers love to push back on any ruling made under the general duty clause as too vague.

Walmart’s basic case, therefore, is that they had no idea that the mob at the gates — that they invited, with their marketing, and that they did not put measures in place to control — was a recognizable hazard. If Walmart wins the appeal, then there’s no precedent on the books for retailers that crowd control is a safety risk for which they are responsible. If OSHA prevails, on the other hand, then regulators would have a case to point to in the future to say, “Walmart did this, we fined them, this is reasonable, you should have known better.”

Since 2009, the retailer has changed their Black Friday crowd management protocols. A spokesperson for Walmart told the HuffPo that “we took major steps working with crowd experts, law enforcement and people who do this for a living to see and help set up our stores,” including staggering sales throughout the day and spreading out merchandise so fewer knots of frenzied people form.

[pixy0stix]

No, but you see people need these deals and Walmart provides reasonably priced shit.

(I may have had a stroke. Send help.)

[elleblue]

[ChillyMcFreeze]

TWO MILLION DOLLARS APPEALING A SEVEN THOUSAND DOLLAR FINE??

[jln]

[ESF]

Nov 25, 2014 16:40:26 GMT -5 ChillyMcFreeze said:

TWO MILLION DOLLARS APPEALING A SEVEN THOUSAND DOLLAR FINE??

They don't want to set a precedent that they should be liable every time an employee gets killed or injured by hoards of people trying to buy cheap shit.  

They claim to be taking measures to improve crowd control, but they know that truly effective measures will cut into their bottom line, so why bother.

[penguingrrl]

Corporate responsibility at its finest. They could have really played this honorably by saying that the loss of their dedicated employee is a stain on their company and they need to do better. They pay the fine and take measures to ensure no employee is at risk of that happening again.

No, spending $2M to avoid paying $7K is clearly the more reasonable answer.

[msmerymac]

My dad has become quite conservative as he ages. But his job is heavily involved in OSHA (like actually training people on OSHA regulations). I wonder if his head will explode over this issue.

[ttt]

They get away with this because enough people simply don't give a crap. Their stuff is cheap and that's what matters most.

[zelda25]

I'm sure I'll be flamed from here to breakfast for this--and I recognize Wal-Mart is Douche, Inc.--but my knee-jerk reaction is to blame the people acting like they were being chased by Godzilla in their quest for marked-down widgets. Blaming a company for the ridiculous behavior of shoppers? Because of a sale? No.

[josieposy]

Nov 25, 2014 16:46:35 GMT -5 ESF said:

Nov 25, 2014 16:40:26 GMT -5 ChillyMcFreeze said:

TWO MILLION DOLLARS APPEALING A SEVEN THOUSAND DOLLAR FINE??

They don't want to set a precedent that they should be liable every time an employee gets killed or injured by hoards of people trying to buy cheap shit.  

They claim to be taking measures to improve crowd control, but they know that truly effective measures will cut into their bottom line, so why bother.

I was wondering if this was why.

[ESF]

Nov 25, 2014 17:29:33 GMT -5 josieposy said:

Nov 25, 2014 16:46:35 GMT -5 ESF said:

They don't want to set a precedent that they should be liable every time an employee gets killed or injured by hoards of people trying to buy cheap shit.  

They claim to be taking measures to improve crowd control, but they know that truly effective measures will cut into their bottom line, so why bother.

I was wondering if this was why.

And for the record, how the fuck did we get here?  What is this country where this is acceptable?

One of their employees DIED.  

They knew there would be massive crowds, they incited those crowds by dangling limited-time money saving deals in front of them, knowing that -- in 2008, as the economy was collapsing -- that people were dead broke and would do anything to save money.  Crowd control would have cut into their billion+ bottom line.  So why bother?  Play dumb and blame your failure to maintain a safe workplace on your customers?

Then they go and fight a slap on the wrist fine with a six year legal battle so they can continue to maintain unsafe working conditions.  

Fuck them.

[Velar Fricative]

Every time we drive by that Wal-Mart, I get really sad. This just infuriates me.

zelda25, I blame the shitheads who stampeded over that poor man too, no doubt. But Wal-Mart fucked up on crowd control. All those people outside and you thought what you had inside was adequate?

And it's even crazier that 6 years later, BF has just gotten even more insane.

[NewOrleans]

Nov 25, 2014 17:00:27 GMT -5 zelda25 said:

I'm sure I'll be flamed from here to breakfast for this--and I recognize Wal-Mart is Douche, Inc.--but my knee-jerk reaction is to blame the people acting like they were being chased by Godzilla in their quest for marked-down widgets. Blaming a company for the ridiculous behavior of shoppers? Because of a sale? No.

they are not being blamed for the behavior of shoppers.

they are being blamed for ineffective crowd control / a disorderly system that day.

[ttt]

Nov 25, 2014 17:00:27 GMT -5 zelda25 said:

I'm sure I'll be flamed from here to breakfast for this--and I recognize Wal-Mart is Douche, Inc.--but my knee-jerk reaction is to blame the people acting like they were being chased by Godzilla in their quest for marked-down widgets. Blaming a company for the ridiculous behavior of shoppers? Because of a sale? No.

It's not that though, it's that WalMart set up conditions they knew to be dangerous and failed to take measures to protect workers from that danger.

[zelda25]

Nov 25, 2014 18:48:21 GMT -5 ttt said:

Nov 25, 2014 17:00:27 GMT -5 zelda25 said:

I'm sure I'll be flamed from here to breakfast for this--and I recognize Wal-Mart is Douche, Inc.--but my knee-jerk reaction is to blame the people acting like they were being chased by Godzilla in their quest for marked-down widgets. Blaming a company for the ridiculous behavior of shoppers? Because of a sale? No.

It's not that though, it's that WalMart set up conditions they knew to be dangerous and failed to take measures to protect workers from that danger.

I get that--on one hand, anyway.  It's the "shopping as dangerous activity" business that I can't get my head around. That this is even an issue is insane.

[ESF]

Nov 25, 2014 17:00:27 GMT -5 zelda25 said:

I'm sure I'll be flamed from here to breakfast for this--and I recognize Wal-Mart is Douche, Inc.--but my knee-jerk reaction is to blame the people acting like they were being chased by Godzilla in their quest for marked-down widgets. Blaming a company for the ridiculous behavior of shoppers? Because of a sale? No.

Let me give you another example.

Let's say this is UVA.  UVA knows that its customers, i.e. the frat boys, are raping people left and right.  The school does not expel them or set up any thing to prevent rape.  A UVA employee gets raped by a customer.

Is UVA off the hook, because hey, it's the ridiculous behavior of their customers?

ETA - I just saw your other comment.  "shopping" isn't dangerous, but it's well known that crowds are.

[zelda25]

Nov 25, 2014 18:53:12 GMT -5 ESF said:

Nov 25, 2014 17:00:27 GMT -5 zelda25 said:

I'm sure I'll be flamed from here to breakfast for this--and I recognize Wal-Mart is Douche, Inc.--but my knee-jerk reaction is to blame the people acting like they were being chased by Godzilla in their quest for marked-down widgets. Blaming a company for the ridiculous behavior of shoppers? Because of a sale? No.

Let me give you another example.

Let's say this is UVA.  UVA knows that its customers, i.e. the frat boys, are raping people left and right.  The school does not expel them or set up any thing to prevent rape.  A UVA employee gets raped by a customer.

Is UVA off the hook, because hey, it's the ridiculous behavior of their customers?

Of course not. But creating or fostering an environment in which sexual assault is swept under the rug, if not outright encouraged, is not analogous to people being miscreants at a fucking black friday sale. 

[ESF]

Nov 25, 2014 18:57:49 GMT -5 zelda25 said:

Nov 25, 2014 18:53:12 GMT -5 ESF said:

Let me give you another example.

Let's say this is UVA.  UVA knows that its customers, i.e. the frat boys, are raping people left and right.  The school does not expel them or set up any thing to prevent rape.  A UVA employee gets raped by a customer.

Is UVA off the hook, because hey, it's the ridiculous behavior of their customers?

Of course not. But creating or fostering an environment in which sexual assault is swept under the rug, if not outright encouraged, is not analogous to people being miscreants at a fucking black friday sale. 

But that's where I go back to my other point, which I must have added after you replied.

It's well known that crowds are dangerous.  Concert venues, night clubs, bars, sporting venues, etc -- these are all places that spend lots of money in crowd control techniques.  

This Black Friday wasn't Wal-mart's first time at the rodeo.  They knew that there would be massive crowds.  They know that their limited time only specials would cause people to rush into the store.  A lot of these doorbuster specials are things that are discounted for the first hour, or for the first 100 sold, or something like that.  Walmart encouraged people to push their way through the door.  

While I think people should just stay home, there are people in this world willing to get up at 4 in the morning to save $50 on a playstation.  Walmart knows these people would do anything to save a buck, and just didn't give a shit.

I don't think it's ridiculous to conclude that Wal-mart knew that its customers that morning would be so eager at this limited time offer to save money that they would push their way into the store to make sure their 4 am wake up was not in vain.  That conclusion seems like common sense to me.  

Surely you agree that a company has to provide a safe working environment, yes?

If Wal-mart knew its there would be a large crowd prone to pushing and shoving, why don't they share in the blame for knowingly putting their employee in harm's way?

[msmerymac]

Nov 25, 2014 18:57:49 GMT -5 zelda25 said:

Nov 25, 2014 18:53:12 GMT -5 ESF said:

Let me give you another example.

Let's say this is UVA.  UVA knows that its customers, i.e. the frat boys, are raping people left and right.  The school does not expel them or set up any thing to prevent rape.  A UVA employee gets raped by a customer.

Is UVA off the hook, because hey, it's the ridiculous behavior of their customers?

Of course not. But creating or fostering an environment in which sexual assault is swept under the rug, if not outright encouraged, is not analogous to people being miscreants at a fucking black friday sale. 

I guess I would wonder what other stores have done to prevent people from being trampled to death by crowds, and then investigate what WalMart did differently. Clearly people are not being killed on BF left and right at Best Buy.

[zelda25]

Nov 25, 2014 19:30:11 GMT -5 msmerymac said:

Nov 25, 2014 18:57:49 GMT -5 zelda25 said:

Of course not. But creating or fostering an environment in which sexual assault is swept under the rug, if not outright encouraged, is not analogous to people being miscreants at a fucking black friday sale. 

I guess I would wonder what other stores have done to prevent people from being trampled to death by crowds, and then investigate what WalMart did differently. Clearly people are not being killed on BF left and right at Best Buy.

I'm curious about this, too.

Sent from the infernal device.

[tacosforlife]

Nov 25, 2014 17:00:27 GMT -5 zelda25 said:

I'm sure I'll be flamed from here to breakfast for this--and I recognize Wal-Mart is Douche, Inc.--but my knee-jerk reaction is to blame the people acting like they were being chased by Godzilla in their quest for marked-down widgets. Blaming a company for the ridiculous behavior of shoppers? Because of a sale? No.

This maybe - MAYBE - works if we're talking about another customer getting killed. But this was Wal-Mart's own employee. The store has to have at least SOME duty to take measures to protect employees from death by crowd. And the fact theta it's spent over $2 million to avoid having such a duty recognized is disgusting.

[tacosforlife]

We are sitting in traffic so H asked me to read him some of the lady internet.

I read him the article that ESF posted. His reaction: "Oh, but it's crowds of black people that are scary."

I love him.

[ESF]

Nov 25, 2014 19:33:40 GMT -5 tillie said:

Nov 25, 2014 19:30:11 GMT -5 msmerymac said:

I guess I would wonder what other stores have done to prevent people from being trampled to death by crowds, and then investigate what WalMart did differently. Clearly people are not being killed on BF left and right at Best Buy.

I believe Best Buy cues people up with rope line/mazes like at an amusement park to help prevent the rush.

Yes.  I made one trip to Best Buy years ago on Black Friday, it was in the afternoon to get a cell phone, and there were ropes, even in the afternoon.

Part of the problem is the nature of the deals.  When they are only offered for a couple hours, and people fear limited supply, that agitates people.

In addition, Walmart has a more diverse store inventory, so there's more people that will show up, and people will buy more items.  People who several items may not go to Best Buy, even if the deal is better, because overall, they will save more by going to Walmart.  So you've got much larger crowds in general.

I'm not sure what Target does. 

That said, it's entirely possible that people are injured frequently at these kinds of things, and we just don't hear about it for a variety of reasons.  People don't want to complain because they need their job, the company pays them off to keep them from complaining, they don't know they have a right to complain, there's an arbitration agreement that keeps all this stuff secret, etc.  

You can't cover up a death, so that's why this one got so much publicity, but a simple google search brings up lots of Black Friday accidents.

blackfridaydeathcount.com

Some of them are stretches (car accident on that day, etc) but point still stands.  This isn't an isolated incident.

[tacosforlife]

Can I also say how glad I am that we are just buying cheese for my entire family? Wisconsin Cheese Mart has an online store, praise the still-in-the-womb Jesus.

[UMaineTeach]

Nov 25, 2014 19:50:40 GMT -5 @evelynrichards said:

Fwiw, walmart now ensures a one-hour in-stock promise of its doorbusters to prevent this. So if you show up for the deals, you will get one as long as you are there in an hour. It staggers its deals so there is no need to stampede (and, of course, so people will shop all day long).

Other retailers don't do this, so the risk of injuries is still there.

Walmart should pay this, no question, but they have taken steps, however self-serving, that means this shouldn't happen again.

I feel like the very fact that they changed policy after someone got killed is half admitting that they put the employee in danger with the prior policy. There was a safety improvement to be made and they didn't care to make it, until there was a death.

All fun and games 'til someone gets hurt.