September 29, 2023

Ruling Emphasizes Crowd Control by Retailers

Wal-Mart has spent more than a year and almost $2 million fighting the $7,000 fine from the Occupational Safety and Health Administration, which stems from a customer stampede on Thanksgiving weekend at a Valley Stream, N.Y., store that killed the employee, Jdimytai Damour. That is in part, lawyers and retail executives say, because Wal-Mart and other stores do not want regulators overseeing how they run sale events, like the day after Thanksgiving.

“The precarious situation is that you have government micromanaging how sales are conducted, and really saying they need to be conducted in a certain way,” said Casey Chroust, executive vice president for retail operations at the Retail Industry Leaders Association, a trade group.

But even as Wal-Mart may be planning an appeal of Friday’s decision, Michael Schmidt, a partner in the labor and employment practice group at Cozen O’Connor, said that retailers would most likely hurry to put in place the crowd control guidelines that OSHA issued last year.

The guidelines say that barricades should start away from the store’s entrance, and that they must have breaks or turns in them to prevent customers pushing from the rear. The guidelines also say that employees should be assigned to specific spots, and that the local police, fire department and hospitals should be alerted about an event that might draw crowds.

The guidelines suggest major changes to the first-come, first-serve way that many events are held. They say that retailers should “consider using an Internet lottery for ‘hot’ items”; use wristbands or tickets to designate those who have arrived early; and distribute pamphlets showing where sale items are located within the store.

If the fine stands, the federal safety agency could have far more influence over marketing campaigns, some retailers say.

OSHA could “change the way they’re doing big promotions and big kinds of sales,” Mr. Schmidt said of retailers. Wal-Mart “doesn’t want OSHA to increase its web to start regulating programs, and the operations of retailers generally.”

Mr. Chroust said that in addition to the guidelines telling retailers how to control crowds, they also assume that retailers can predict when a crowd can turn problematic.

“What is officially defined as a dangerous crowd?” he said. “If you have a sale that’s going to take place for a hot video game, a new piece of technology that’s going to be released, do you have to start putting into place crowd-management procedures if even the possibility of a crowd could emerge?”

Joe LaRocca, senior adviser for asset protection at the industry group National Retail Federation, said that by extension, if retailers were held responsible for raucous crowds, they could also be held responsible for, say, random shootings on their sites.

Retailers and mall operators “have expressed a concern that this fine could open up retailers to some liability or responsibility in a similar issue, or an issue that might be comparable to an active shooter, to a shooting situation, inside a store or mall,” he said.

Covette Rooney, the judge in the Wal-Mart case, found that in 2008, Wal-Mart’s “precautions to protect its employees were minimal and ineffective.” She reviewed what had happened at the Valley Stream store on Thanksgiving sales in 2008 and earlier.

On Thanksgiving Friday in 2005, 2006, and 2007, the surging crowd had popped the doors off their hinges at the store, for instance.

By 3 a.m. on Friday 2008 though, barricades were placed 40 feet from the doors, and customers had already jumped over them. By 4 a.m., there was no space between the store’s doors and the crowd. Employees asked the crowd to step back, but “they were not responding,” according to one employee’s testimony.

As it got closer to 5 a.m., when the store was to open, a Wal-Mart regional executive suggested to the store manager that they not open the doors, because the crowd seemed unruly and the police were not present. The store manager “rejected his suggestion,” according to Ms. Rooney’s review of the testimony.

Wal-Mart had “trained its employees in the prevention of trip, slip and fall hazards to customers” and told employees to “ ‘stay out of the way’ of the onrushing crowd of customers,” Ms. Rooney wrote, but “these instructions were plainly inadequate to protect employees from the cited hazard.”

Eight to 10 employees were pushing against the door to counteract the press of customers trying to get in, according to one employee’s testimony. Once the doors were unlocked, customers fell in the vestibule, and employees climbed on top of vending machines to protect themselves. As in years past, the doors popped off their hinges. Mr. Damour was trampled. He died at the site.

“The record shows Wal-Mart exposed its employees to the hazards that were present at the store during Blitz Day 2008 for a three-year period, that is, Blitz Days 2006, 2007 and 2008,” Ms. Rooney wrote.

By 2009, as part of a settlement with Nassau County in which the county agreed not to prosecute the retailer, Wal-Mart agreed to revise its Thanksgiving Friday security plans for all its New York stores starting in 2009. It extended the approach to most of its stores.

The lines of people waiting for the 5 a.m. openings were eliminated. Instead, Wal-Mart stayed open from 7 a.m. on Thanksgiving Day through the night. For the hot items, like electronics, people were given tickets, so they did not have to rush and grab items. Instead of the plastic barriers, the store’s employees set up steel barriers in zigzag patterns outside the door. Employees stood on raised platforms to tell the crowd what was happening. And the company asked some employees to watch videos on crowd control techniques. There were no reports of serious injuries or deaths in 2009 or in 2010.

Yet those changes showed that “feasible means existed to eliminate or materially reduce the cited hazard at the store” in 2008, Ms. Rooney wrote.

Article source:

Speak Your Mind