Wal-Mart, Crowd Control, and OSHA's General Duty Clause

On Black Friday 2008 at a Wal-Mart store in Valley Stream, Long Island, 34-year-old worker Jdimytai Damour was killed by a stampede of shoppers. In a New Yorker article on crowd disasters, Jon Seabrook reports that the official cause of death was asphyxiation, as it often the case in crowd-related deaths. The crowd's force pushed the store's sliding glass doors from their frames; one of them apparently fell on top of Damour, and his co-workers didn't see what happened after that. Damour had been working at the store for about a week, and none of his training addressed security or crowd control.

The Occupational Safety and Health Administration cited Wal-Mart for one serious violation of the General Duty Clause of the Occupational Safety and Health Act and fined the company $7,000. The company challenged the citation --- at the cost of around $2 million, OSHA estimates. Last Friday, Chief Administrative Law Judge Covette Rooney of the Occupational Safety and Health Review Commission upheld the citation and penalty. As Assistant Secretary of Labor for Occupational Safety and Health David Michaels noted in the OSHA press release, Judge Rooney issued her decision on the 100th anniversary of the Triangle Shirtwaist Factory Fire.

Now seems like a good time to delve into what this General Duty Clause is, and what OSHA's use of it might mean for future workplace-safety enforcement.

Section 5 of the Occupational Safety and Health Act of 1970 states:

(a)Each employer --

(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;

(2) shall comply with occupational safety and health standards promulgated under this Act.

Part of OSHA's job is to write specific standards that employers must comply with, as the second part of the General Duty Clause requires. Here's one example: The 1991 Bloodborne Pathogens standard requires that employers whose workers are exposed to blood or other potentially infectious materials (healthcare providers, morticians, housekeeping workers, etc.) have Exposure Control Plans to reduce or eliminate the hazards of exposure to microorganisms that cause bloodborne diseases. A 2001 update to the standard specified that "safer medical devices, such as sharps with engineered sharps injury protections and needleless systems" must be used where feasible.

Promulgating these standards takes a great deal of time and effort for OSHA; for instance, the agency released the final rule updating its crane and derrick standard in 2010, after having begun a negotiated rulemaking process on it in 2003. While it's appropriate that the agency conduct extensive research and allow time for input from the public and the White House, the process seems to stretch out far longer than should be necessary to fulfill these obligations.

The slowness of the rulemaking process is one reason why many workplace hazards (like extreme temperatures, workplace violence, and combustible dust) haven't been addressed by OSHA standards, but another reason is simply that there are too many workplace hazards to develop a standard for each one. OSHA has around 30 comprehensive standards for hazardous substances, but there are thousands of chemicals in use in US workplaces.

Recognized Workplace Hazards
But OSHA shouldn't need to have standards for every single possible workplace hazard, because the first part of the General Duty Clause requires that employers furnish "employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees." If a factory owner knows the facility's production process involves a dangerous chemical, she should do what's necessary to reduce or eliminate her workers' exposure to it, whether or not a standard tells her to do so.

When OSHA cites an employer for violating the General Duty Clause, it essentially means that even though the agency hasn't spelled out steps for addressing a hazard, the employer should've known that the hazard existed and needed to be addressed. How much employers should know and do without being explicitly instructed is, of course, open to interpretation --- and since employers routinely challenge OSHA citations, a judge will probably end up deciding.

OSHA cited Wal-Mart under the General Duty Clause for exposing workers to the recognized hazard of being crushed by a crowd. Seabrook summarizes Wal-Mart's response:

Wal-Mart objected on multiple grounds. First, if crowd crushes and surges were recognized hazards, then why hadn't a single OSHA General Duty Clause citation ever referred to the dangers posed by crowds before? Wal-Mart also maintained that it had taken steps to protect its workers from the crowd, but it could not have protected workers from this particular crowd. And, finally, the violence caused by the crowd was a police issue and therefore beyond OSHA's jurisdiction.

Seabrook also reports that a department manager from the Wal-Mart store where Damour was killed testified that the store's doors had broken in the 2007 Black Friday event --- and a video of a management meeting two days before the 2008 disaster showed that managers had discussed the issue of crowd control.

Judge Rooney apparently agreed with OSHA that Wal-Mart should've recognized crowd crush hazards and done more to protect employees from them. If she hadn't, it would've made it harder for OSHA to successfully cite employers for similar violations in the future. In fact, it can be risky for OSHA to use the General Duty Clause because judicial decisions against it can contain language (like interpretations of Congressional intent) that will make it harder for OSHA to make any kind of legal case using the clause, regardless of the specific hazard. Wal-Mart may still appeal, so the ultimate outcome of this case is still uncertain.

Recent OSHA Activities
Recently, OSHA has used the General Duty Clause in cases involving a plant where extensive corrosion of a support structure left employees vulnerable to being crushed in a collapsing building and a psychiatric hospital where employees were assaulted by violent patients. A National Emphasis Program on combustible dust, launched in 2007 and strengthened in 2008 after an explosion at an Imperial Sugar plant in Georgia killed 14 workers and injured many more, has resulted in 211 citations under the General Duty Clause.

OSHA's outreach to employers on specific workplace hazards not covered by standards could be an attempt to lay the groundwork for future General Duty Clause citations --- although the best scenario would be for employers whose workplaces have these hazards to abate them before OSHA could cite them. Prior to Black Friday in 2009 --- the one-year anniversary of Jdimytai Damour's death --- OSHA posted a fact sheet on crowd control on its website and issued a press release; in 2010, the agency sent a letter and fact sheet to 14 major retail companies, encouraging them to take precautions. Last year, a letter to gas power plant operators warned of the dangers of "gas blow" procedures, because they can cause explosions like the one that killed six workers at the Kleen Energy plant in Connecticut. If these employers have been specifically informed about these hazards and how to address them, it'll be harder for them to claim they're not "recognized hazards."

Michaels has also indicated that the agency will be compiling a list of "Dirty Dozen" chemicals for which current permissible exposure limits are inadequate, educating employers about the chemicals and their hazards, and then using the General Duty Clause to cite employers whose workers' exposures to the chemicals are unsafe.

Finally, OSHA is planning an even more ambitious approach to getting employers to protect their employees from hazards for which there are no standards: an Injury and Illness Prevention Program standard, or I2P2. Michaels described it this way to the House Education and Labor Committee:

In April, the Labor Department released its Spring regulatory agenda which includes a new enforcement strategy -- Plan/Prevent/Protect -- an effort designed to expand and strengthen worker protections through a new OSHA standard that would require not just the best employers, but every employer to implement an Injury and Illness Prevention Program tailored to the actual hazards in that employer's workplace. Instead of waiting for an OSHA inspection or a workplace accident to address workplace hazards, employers would be required to create a plan for identifying and remediating hazards, and then to implement this plan.

Essentially, through this common sense rule, also known as "Find and Fix," we will be asking employers to find the safety and health hazards present in their facilities that might injure or kill workers and then fix those hazards. Workers, those who are most directly at risk, would participate in developing and implementing these workplace safety plans and evaluating their effectiveness in achieving compliance.

If an I2P2 standard had been in place in 2008, Wal-Mart might have identified the potential hazard of a crushing crowd of Black Friday shoppers and established appropriate safeguards that could have saved Jdimytai Damour's life. From Seabrook's description, it sounds like the Valley Stream Wal-Mart did have a strong crowd-control strategy in place this past Black Friday --- something required by the company's settlement agreement with the Nassau County District Attorney. The goal, though, is to get these hazards fixed before workers die, not after. Whether through I2P2, the General Duty Clause, or both, OSHA needs to be able to enforce the requirement that employers furnish workplaces free of recognized hazards that can cause serious harm.