Where there's a bargain to be had, there will likely be crowds of eager shoppers - and the country's biggest retailer is battling the federal government over responsibility for protecting employees if those customers become unruly.
Lawyers for Wal-Mart Stores Inc. spent last week appealing a citation issued by the Occupational Safety and Health Administration, which found the company negligent in protecting its workers during the 2008 Black Friday sale at the Valley Stream store. Crowds rushing into the store trampled Jdimytai Damour, a temporary worker, who died of asphyxiation.
After the incident, Wal-Mart agreed to adopt a plan from the Nassau County district attorney's office to use crowd management techniques at the special sales for the 92 stores it has in the state, and the company set up a $100,000 victims' compensation fund.
But for the past year, the mega-retailer has vigorously fought the citation's $7,000 fine that OSHA levied last May. The company claims that protecting workers from crowds was not a federal standard at the time of Damour's death.
The outcome could have industrywide impact: Observers said the OSHA precedent potentially makes special sales difficult and unprofitable for retailers if they must hire more staff and follow federal guidelines.
That could spell the end of the mass events that retailers hold to lure shoppers, from the multiday waiting lines for the latest Apple gadgets to the midnight "Twilight" book release parties at Barnes & Noble.
OSHA citation in question
During the hearing before Judge Covette Rooney of the Occupational Safety and Health Review Commission, Wal-Mart attorney Jason Schwartz argued the fine was misguided and the government's real intent is "to govern the behavior of crowds, not employers."
Anthony Ciuffo, OSHA area director for Long Island, testified that he issued the citation in part because the same store had its front door damaged by crowds during the 2007 Black Friday sale, so Wal-Mart should have foreseen the potential for harm to customers and staff.
"The citation has far-reaching implications for the retail industry that could subject retailers to unfairly harsh penalties and restrictions on future events," said Greg Rossiter, spokesman for Wal-Mart.
One marketing expert said the company was fighting the government's attempt to define crowds as a potential occupational safety hazard. "The big picture is that if Wal-Mart agrees to pay a fine, what they're saying is they and other retailers now have to protect workers from crowds," said Barry Berman, a marketing and international business professor at Hofstra University.
"Wal-Mart really does not want the government to tell it later on you need X number of guards, or line barriers. They'd rather spend millions fighting the $7,000 fine and not X millions over the years hiring the additional personnel, which would be significant," he said.
Ruling's future impact
John Fruin, a retired crowd safety expert from Massapequa who is not involved with the Walmart investigation, said the simple goal for a mass retailer is to attract as many customers as possible. "From the retailer's perspective, the more the merrier," Fruin said. "After all, there's a limited supply of what they're selling."
A spokesman for the Retail Industry Leaders Association, of which Wal-Mart is a member, said the precedent would be "dangerous."
"The citation is based on a standard that wasn't even conceived of at the time of the incident," said Brian Dodge, senior vice president for communications for the association.
"Retailers don't need legislation to tell them to make a safe environment that's enjoyable and safe for their employees," said Joe LaRocca, senior adviser of asset protection for the National Retail Federation.
But Fruin said the issue of customer hordes has been simmering for as long as stores have held sales.
"This goes back a long way," Fruin said, recounting the frenzy that erupts with annual bridal gown sales at department stores. The OSHA citation "sends an excellent message" to retailers, he said. "They have to get a better understanding of crowds."
The proceedings will continue in the fall.