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As Thanksgiving rolls around with Black Friday right behind it, there’s an unpleasant anniversary that’s also on the way: the five year anniversary of the death of Jdimytai Damour.
While working at the Green Acres Mall store in New York’s Nassau County, Walmart employee Damour was crushed when stampeding masses of customers trampled him to death on Black Friday of 2008. Five years later, Walmart has still not paid the $7,000 it was fined for failing to protect its employees from such endangerment. Though the fine is miniscule for a company with sales of $466 billion last fiscal year, the company has faced no repercussion for the delay.
Today, the Jdimytai Damour case sits on appeal with a review commission, with little hope for resolution in sight. Occupational health experts say this case is the perfect example of how corporations can delay penalties and dismiss dangers in the workplace seemingly without end or real consequence.
Celeste Monforton, a former OSHA analyst who’s now a lecturer at George Washington University, said “It’s not about the penalty, it’s this interest in seeing how far Walmart can push back against the decision.”
That’s the entire reason behind the indefinite delay, if the retail behemoth were to pay the inconsequential figure the penalty amounts to, it could set a precedent that could lead to new mandatory safety precautions for workers and risk opening itself up to countless new liabilities.
Walmart’s spokesman, Randy Hargrove, assures the public that “since that time, [Walmart] has developed comprehensive plans in stores around the country, and worked with nationally recognized crowd management experts to do it.” But despite the assurances of their PR department, from a legal standpoint, Walmart remains as rigid as it did 5 years ago, and has not committed to accepting guilt, paying the maximum fine that OSHA can levy under current law for what’s deemed a “serious” safety violation, and setting worker safety priorities in stone.
OSHA, the branch of the Labor Department responsible for enforcing workplace safety, looked into Damour’s death and cited Walmart indisputably guilty in failing to adequately control the crowds and endangering their workforce. Damour was trying to hold back a crowd before sunrise on Black Friday when the store’s glass doors gave way and he was overrun, while other employees were forced to climb atop vending machines to escape the same fate.
Under the “general duty” clause, OSHA states that a company is expected to take reasonable precautions for the health and safety of its workers in specific situations. Given the history of shopper hysteria surrounding Black Friday, Walmart should’ve taken precaution and protected its workforce from the possibility of being trampled to death while working for minimum wage.
The legal filings paint a picture of complete disarray, an inability to contain a frenzy the major retailer hoped to benefit off of, at the expense of putting its workforce in mortal peril.
“Employees attempted to surround the fallen employee and protect him from the incoming crowd of customers, some customers turned back into the vestibule and vandalized the store’s security devices, causing them to become unbolted from the floors. Other customers hoarded televisions and attempted to resell them on the sales floor.”
Walmart has appealed the OSHA fine, successfully sustaining that their culpability in the matter is ambiguous, arguing that the dangers of their Black Friday crowds couldn’t have been predicted. When an administrative law judge finally upheld the fine, ruling that the Black Friday crowds should have been a recognized hazard for the retailer, Walmart appealed the fine to the Occupational Safety and Health Review Commission, an agency wholly independent from OSHA that can choose to consider appeals.
Randy Rabinowitz, a lawyer, work safety expert and former counsel on the Senate’s labor committee said, “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.”
If the fine is upheld, Walmart would be deemed negligent and culpable for Damour’s death. Damour’s death would not have been in vain, for it would pressure the company and its competitors to acknowledge the potential peril of their cost-cutting policies and implement greater safeguards against shopping crowds.