OSHA lobs spitball at Battleship Wal-Mart
Last month, OSHA’s area office for Long Island, New York, cited Wal-Mart Stores, Inc., $7,000 for inadequate crowd control following the November 28, 2008 death of a temporary Wal-Mart employee. The man was knocked to the ground and trampled by a frenzied mob of some 2,000 bargain-hunters in a pre-dawn, Black Friday holiday sales stampede at Wal-Mart’s Valley Stream, N.Y. store, about 20 miles east of Manhattan.
Jdimytai Damour (Jimmy-tree) 34, had only been on the job a week as a so-called “seasonal worker” and died of asphyxiation. $7,000 is the maximum penalty OSHA can cite for a single serious violation, which was what the tragedy was judged to be. $374.5 billion was the sales total racked up by Wal-Mart for the fiscal year ending January 31, 2008. Inspectors used Section 5 of the Occupational Safety and Health Act of 1970, the so-called general duty clause, to cite Wal-Mart the maximum $7,000 fine for a serious violation of the clause.
There’s something pathetic here, though perfectly legal, about a $374.5 billion business being fined $7,000 for an employee’s gruesome death on the job.
A belated gold standard
In all-too-typical reactive fashion, Wal-Mart, as part of a settlement agreement with the Nassau County District Attorney’s office to avoid prosecution, has gone out and hired the finest crowd security consultants in the country. They’ve worked NFL Super Bowls and Olympic games. Now they’ll devise “protocols set up to be the gold standard for crowd management” in the retail industry, according to Nassau County District Attorney Kathleen Rice.
A $10,000 fine is the max the D.A. could have sought.
Wal-Mart will implement the new plan at its 92 New York stores as part of the deal with the D.A.’s office. The deal also calls for Wal-Mart to set up a $400,000 victims’ compensation and remuneration fund (11 others, including a pregnant women, were injured in the crush), contribute $1.2 million for Nassau County’s Youth Board, donate $300,000 to the United Way of Long Island, and hire 50 high school students every year to work in its five stores in the county. Call it knee-jerk corporate social responsibility.
Here’s hoping the high schoolers receive the training in security and crowd control Mr. Damour never got.
Monetizing life
This story isn’t about Wal-Mart, OSHA, or the Nassau Country DA. It’s about the impossible and demeaning task of putting a price tag on human life. Here there can be no “gold standard.”
The mathematics of loss doesn’t add up. In 25 major aviation accidents between 1970 and 1984, the average compensation for victims who went to trial was $1 million, according to a Rand Corporation analysis. Average comp for cases settled out of court was $415,000. The wife of a currency trader killed in the 9/11 attacks on the Twin Towers was eligible for $138,000. The widow of a security guard killed in Tower 1 will get $444,010.
For some, money doesn’t matter. There were about a dozen families so clinically depressed about 9/11 they never filed a claim to the compensation fund. Those families would have received on average $2 million each tax-free.
OSHA’s $7,000 fine of course is not intended to compensate for a life lost. But it’s ridiculous to read OSHA’s press release stating a $374.5 billion company has been hit with a $7,000 penalty for the death of one of its employees trampled on the job like a human doormat. Like it or not, the $7,000 is interpreted as the price tag for this fatality. It’s grotesque.
It’s all legit
EPA recently fined an apartment complex owner and property management firm more than $300,000 for failing to disclose information about lead paint to tenants. Failure to simply disclose info about lead paint is 40 times worse of a transgression than having an employee stampeded to death? OSHA recently fined a Texas piping manufacturer $146,500 — more than 20 times the Wal-Mart fine — for 29 serious violations, though no one was injured or killed.
These discrepancies are legitimized by laws that on the books. They also cheapen respect for life and dignity.
Stronger medicine
In Congress, there is a proposal to increase the OSHA serious/fatality violation penalty maximum to $12,000, allowing up to $50,000 for a fatality.
$7,000, $12,000, $50,000 — no matter how many zeroes you affix to the penalty, it won’t modify corporate behavior or change corporate culture. As someone once told me, only greed (see financial meltdown) or fear (of a brand meltdown) will do that.
OK, so how about mandatory referral to the Justice Department and jail time with no parole for managers found guilty of willfully or seriously neglecting their duty to protect employees when the outcome is an on-the-job fatality?
How about a memorial, a small white cross with a marker perhaps, to Jdimytai Damour set up inside the electronic doors of Wal-Mart’s Valley Stream store. Shoppers entering might stop to consider, “What the hell happened here?” Or maybe their curious kids will ask. I’d like to hear the explanation.
And OSHA needs get with the 21st century service-driven “new” economy. The symbolism of the Wal-Mart penalty is unnecessary. Issue retail industry safety and health guidelines. Put more of a priority on evaluating work environments where public behavior can be hazardous, such as retailing, health care (patients and visitors), and highway construction work zones.
Don’t lob spitballs at battleships and in doing so belittle lives lost. Do something of consequence. What’s $7,000 to a $374.5 billion multinational? A dwarf kicking grains of sand at a giant. Stop degrading victims, victims’ families and OSHA’s credibility. Rewrite the legal technicalities that lawmakers, attorneys and companies hide behind. Stop making it so easy for all of us to quickly turn the page and forget another life lost unnecessarily.
Dave Johnson, ISHN Editor
Showing posts with label Occupational Safety and Health Administration. Show all posts
Showing posts with label Occupational Safety and Health Administration. Show all posts
Wednesday, June 24, 2009
“Most of the parents were desperate…”
It’s time to truly engage victims and their kin
I’m reading the new book, “Columbine,” (Twelve/Hachette Book Group, 2009) and I can’t get Ron Hayes out of my head. Ron, from Fairhope, Alabama near Mobile, has been raising hell as a worker safety and victims’ rights activist since 1993, when his 19-year-old son Pat was killed on the job. Pat was "walking down the corn" — scraping the inside walls of a grain bin in Florida. As Pat knocked down the corn, 60 tons of it collapsed in a rush, suffocating him to death.
In “Columbine,” author Dave Cullen describes how the families of the 12 dead students, one dead teacher, and the 24 injured were misled and mistreated by public officials. Ron knows that pain.
Panicked parents of Columbine students frantically tried to learn the fate of their kids in the hours immediately after the shooting spree. “No word, for hours on end,” writes Cullen. Day stretched into night. The wife of the murdered teacher couldn’t sleep, still not knowing if her husband was dead or alive. She curled up with a pair of his socks.
The father of one murdered boy had his son’s death confirmed the next morning, flipping through a Denver newspaper. He stopped when he saw a half-page aerial photo of his son’s body stretched out on a sidewalk, next to a large pool of blood.
Fog of catastrophe
Chaos and confusion are partially to blame for the stonewalling and lack of cooperation that often confronts survivors and families of victims after a fatality — especially a large-scale catastrophe. At Columbine High, law enforcement officials had no clue how many perpetrators there might have been. A conspiracy was suspected due to scale of the attack. School officials needed a day to confirm how many of Columbine’s 2,000 students were safe, where they were, how many had been sent to hospitals.
“I knew Cassie was in there (the high school) somewhere,” said her father. “It was terrible to know she was on the other side of the fence and there was nothing we could do.”
“Most of the parents were desperate to learn how their child had died,” writes Cullen.
The official Jefferson County (Jeffco) Sheriff Department’s report had been promised in the summer of 1999, but as the first anniversary (April 20, 2000) approached county officials said the report still had six to eight weeks to go.
“Investigators had wrapped up most of their work in the first four months, but Jeffco was skittish about presenting the information,” writes Cullen. Finally, two families filed an open records request demanding to see the report immediately. They asked for videos made by the two killers, the killers’ journals, the 911 calls, and surveillance videos. The father of one of the families who filed wanted to compare the raw data with the written report. “They lie as a practice,” he said.
“Treated like dirt”
That’s what Ron Hayes discovered, too. “There was no help or justice for Pat. OSHA treated us like we were dirt,” Hayes told a Senate Labor Committee hearing in April, 2008. “Losing a loved one on the job is very difficult to deal with but when the very agency that is supposed to protect them, fails in correcting, investigating and prosecuting the company that killed your loved one, it is even harder to bare.”
A district judge in Colorado approved the request of the two Columbine families. Days later, the judge ordered the sheriff’s department to release its report to the public by May 15. What emerged was about seven hundred pages of who, what, where, when and how information. “The logistics were useful, but hardly what people had been waiting for,” writes Cullen. The essential question of why had been ducked.
Victims and their families are often kept in the dark, and the truth suppressed, out of fear of lawsuits. Columbine was no exception. The sheriff’s report described a complaint that had been filed 13 months before the shooting by a family whose son was the subject of death threats from one of the killers. Ten pages of annihilation rants from the same murderer’s web site had been obtained. The report spent one paragraph summarizing these warnings and two defending police actions, or inaction.
“The department claimed it had been unable to access one of the killer’s web site, despite the fact that officials had printed pages, filed them, and retrieved them within minutes of the attack on April 20, and had cited them at length in the search warrants issued before the bodies were found,” writes Cullen.
“Just heartbroken”
After an OSHA investigation into Pat’s death, agency investigators determined that his employer, Showell Farms, was guilty of six willful safety violations and recommended that the company pay more than $500,000 in fines. But OSHA's area director later reduced the fine to $42,000, citing a lack of clarity about whether OSHA's standards applied.
Ron Hayes and his family learned of the reduced fines and citations from a local news broadcast — despite repeated requests to OSHA for information. "When I saw it on TV that day," he recalled in article in Mother Jones magazine, "I was just heartbroken."
At last year’s Senate hearing Hayes testified, “These cases fall by the wayside and no one seems to care, except for the family.”
Misery at the church
Sen. Edward Kennedy, D-Mass., discovered this firsthand when he and three other senators visited with the families of 12 coal miners killed in the January 2, 2006 explosion at the Sago Mine in West Virginia. These families had been pained beyond the pale by a horrible communication breakdown. Gathered at the Sago Baptist Church, they first received word through widespread press announcements that 12 survivors were found and only one had died. Families ran outside, celebrating a “miracle.” Hours later completely contradictary and correct reports arrived. Only one miner survived while the other 12 had perished.
Kennedy said he was troubled to hear the families had not yet been involved in the accident investigation. He urged state and federal investigators to take time to talk to the relatives, who he said are extremely knowledgeable about the industry.
Congress jumps in
Earlier this year the “Protecting America’s Workers Act” was introduced in the U.S. House a Representatives. Among the bill’s provisions: a series of legal rights to allow “workers and their families to hold dangerous employers accountable,” according the language of the legislation.
These rights include:
● Workers and employee representatives have the right to contest OSHA’s failure to issue citations, classification of its citations, and proposed penalties.
● Injured workers, their families and families of workers who died in work-related incidents have the right to meet with investigators, receive copies of citations, and to have an opportunity to make a statement before any settlement negotiations.
● Any worker or their representative can object to a modification or withdrawal of a citation, and this entitles them to a hearing before the Occupational Safety and Health Review Commission.
You can argue whether these rights go too far, and Congress will. But it’s time, past time, to stop callous treatment of victims and their families and bring them in from the dark. They need to be engaged, not ignored.
By Dave Johnson, Editor
I’m reading the new book, “Columbine,” (Twelve/Hachette Book Group, 2009) and I can’t get Ron Hayes out of my head. Ron, from Fairhope, Alabama near Mobile, has been raising hell as a worker safety and victims’ rights activist since 1993, when his 19-year-old son Pat was killed on the job. Pat was "walking down the corn" — scraping the inside walls of a grain bin in Florida. As Pat knocked down the corn, 60 tons of it collapsed in a rush, suffocating him to death.
In “Columbine,” author Dave Cullen describes how the families of the 12 dead students, one dead teacher, and the 24 injured were misled and mistreated by public officials. Ron knows that pain.
Panicked parents of Columbine students frantically tried to learn the fate of their kids in the hours immediately after the shooting spree. “No word, for hours on end,” writes Cullen. Day stretched into night. The wife of the murdered teacher couldn’t sleep, still not knowing if her husband was dead or alive. She curled up with a pair of his socks.
The father of one murdered boy had his son’s death confirmed the next morning, flipping through a Denver newspaper. He stopped when he saw a half-page aerial photo of his son’s body stretched out on a sidewalk, next to a large pool of blood.
Fog of catastrophe
Chaos and confusion are partially to blame for the stonewalling and lack of cooperation that often confronts survivors and families of victims after a fatality — especially a large-scale catastrophe. At Columbine High, law enforcement officials had no clue how many perpetrators there might have been. A conspiracy was suspected due to scale of the attack. School officials needed a day to confirm how many of Columbine’s 2,000 students were safe, where they were, how many had been sent to hospitals.
“I knew Cassie was in there (the high school) somewhere,” said her father. “It was terrible to know she was on the other side of the fence and there was nothing we could do.”
“Most of the parents were desperate to learn how their child had died,” writes Cullen.
The official Jefferson County (Jeffco) Sheriff Department’s report had been promised in the summer of 1999, but as the first anniversary (April 20, 2000) approached county officials said the report still had six to eight weeks to go.
“Investigators had wrapped up most of their work in the first four months, but Jeffco was skittish about presenting the information,” writes Cullen. Finally, two families filed an open records request demanding to see the report immediately. They asked for videos made by the two killers, the killers’ journals, the 911 calls, and surveillance videos. The father of one of the families who filed wanted to compare the raw data with the written report. “They lie as a practice,” he said.
“Treated like dirt”
That’s what Ron Hayes discovered, too. “There was no help or justice for Pat. OSHA treated us like we were dirt,” Hayes told a Senate Labor Committee hearing in April, 2008. “Losing a loved one on the job is very difficult to deal with but when the very agency that is supposed to protect them, fails in correcting, investigating and prosecuting the company that killed your loved one, it is even harder to bare.”
A district judge in Colorado approved the request of the two Columbine families. Days later, the judge ordered the sheriff’s department to release its report to the public by May 15. What emerged was about seven hundred pages of who, what, where, when and how information. “The logistics were useful, but hardly what people had been waiting for,” writes Cullen. The essential question of why had been ducked.
Victims and their families are often kept in the dark, and the truth suppressed, out of fear of lawsuits. Columbine was no exception. The sheriff’s report described a complaint that had been filed 13 months before the shooting by a family whose son was the subject of death threats from one of the killers. Ten pages of annihilation rants from the same murderer’s web site had been obtained. The report spent one paragraph summarizing these warnings and two defending police actions, or inaction.
“The department claimed it had been unable to access one of the killer’s web site, despite the fact that officials had printed pages, filed them, and retrieved them within minutes of the attack on April 20, and had cited them at length in the search warrants issued before the bodies were found,” writes Cullen.
“Just heartbroken”
After an OSHA investigation into Pat’s death, agency investigators determined that his employer, Showell Farms, was guilty of six willful safety violations and recommended that the company pay more than $500,000 in fines. But OSHA's area director later reduced the fine to $42,000, citing a lack of clarity about whether OSHA's standards applied.
Ron Hayes and his family learned of the reduced fines and citations from a local news broadcast — despite repeated requests to OSHA for information. "When I saw it on TV that day," he recalled in article in Mother Jones magazine, "I was just heartbroken."
At last year’s Senate hearing Hayes testified, “These cases fall by the wayside and no one seems to care, except for the family.”
Misery at the church
Sen. Edward Kennedy, D-Mass., discovered this firsthand when he and three other senators visited with the families of 12 coal miners killed in the January 2, 2006 explosion at the Sago Mine in West Virginia. These families had been pained beyond the pale by a horrible communication breakdown. Gathered at the Sago Baptist Church, they first received word through widespread press announcements that 12 survivors were found and only one had died. Families ran outside, celebrating a “miracle.” Hours later completely contradictary and correct reports arrived. Only one miner survived while the other 12 had perished.
Kennedy said he was troubled to hear the families had not yet been involved in the accident investigation. He urged state and federal investigators to take time to talk to the relatives, who he said are extremely knowledgeable about the industry.
Congress jumps in
Earlier this year the “Protecting America’s Workers Act” was introduced in the U.S. House a Representatives. Among the bill’s provisions: a series of legal rights to allow “workers and their families to hold dangerous employers accountable,” according the language of the legislation.
These rights include:
● Workers and employee representatives have the right to contest OSHA’s failure to issue citations, classification of its citations, and proposed penalties.
● Injured workers, their families and families of workers who died in work-related incidents have the right to meet with investigators, receive copies of citations, and to have an opportunity to make a statement before any settlement negotiations.
● Any worker or their representative can object to a modification or withdrawal of a citation, and this entitles them to a hearing before the Occupational Safety and Health Review Commission.
You can argue whether these rights go too far, and Congress will. But it’s time, past time, to stop callous treatment of victims and their families and bring them in from the dark. They need to be engaged, not ignored.
By Dave Johnson, Editor
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