Wal-Mart challenging $7,000 OSHA fine over NY worker death in 2008 Black Friday sales blitz

Wal-Mart fights OSHA fine in NY Black Friday death

GARDEN CITY, N.Y. — Wal-Mart Stores Inc. is challenging a proposed $7,000 federal fine resulting from the stampede death of a temporary employee during a post-Thanksgiving sales blitz at a Long Island store, contending it could be subject to harsh restrictions on sales promotions.

Greg Rossiter, a spokesman for the Bentonville, Ark., retailer, said Wednesday Wal-Mart remains committed to avoiding future tragedies, but also argues the Occupational Safety and Health Administration’s proposed fine is a retroactive penalty.

“OSHA wants to hold Wal-Mart accountable for standards that were neither proposed nor issued at the time of the incident,” Rossiter said.

OSHA cited Wal-Mart in May 2009 for inadequate crowd management following the Nov. 28, 2008, death of Jdimytai Damour at its Walmart store in Valley Stream. A hearing on the dispute began Wednesday in New York and was expected to take several days or weeks to complete; a decision was not expected until sometime in early 2011.

The 6-foot-5, 270-pound Damour had been on the job for about a week when a crowd estimated at 2,000 strong broke down the store’s doors in search of pre-dawn bargains, trapping him in a vestibule. The 34-year-old Queens man died of asphyxiation. Eleven other people, including a pregnant woman, were injured.

OSHA said it issues citations when “death or serious physical harm is likely to result from hazards about which the employer knew or should have known.”

Wal-Mart argues that if it concedes OSHA’s point this time, it could be subjected to harsher sanctions in the future if some other crowd-control tragedy should occur.

While Wal-Mart is disputing the OSHA action, it did agree last year to a nearly $2 million settlement with Nassau County prosecutors to avoid a criminal prosecution.

Chris Munzing, a spokesman for District Attorney Kathleen Rice, said Wednesday the prosecutor’s office is in process of reviewing the company’s compliance with agreement. He said the results of that review are expected within weeks.

Rice contended that had the company been found guilty of a crime, it would have been subject to a maximum fine of $10,000.

Instead, she said, the company agreed to improve crowd management at post-Thanksgiving Day sales, set up a $400,000 fund for victims and give $1.5 million to county social services programs and nonprofit groups.

In 2009, many Walmart stores stayed open for 24 hours on Thanksgiving, avoiding the need for a morning-after rush on its stores for bargains. There were no incidents reported at the Valley Stream location where Damour died.

The settlement with prosecutors also required Wal-Mart to consult with experts to develop safety plans for each of its stores.