Tuesday, November 10, 2009

Things Have Gotten Interesting

Some of you have been asking what happened to the OSHA Underground, and I think I've figured out why that site went down. I got this e-mail from Google, the owners of Blogger:

Google has received a subpoena for information related to anonymous comments posted on your blog. The case is entitled Secretary of Labor v. Wal-Mart Stores, Inc., United States Occupational Safety and Health Review Commission, Case number SDT-9-0181.

To comply with the law, unless you or an anonymous commenter provide us with a copy of a motion to quash the subpoena (or other formal objection filed in court) via email at legal-support@google.com by 5pm Pacific Time on November 26, 2009, Google will assume you do not have an objection to production of the requested information and may provide responsive documents on this date.

For more information about the subpoena, you may wish to contact the party seeking this information at:

Michael D. Billok
Gibson, Dunn & Crutcher LLP
1050 Connecticut Avenue, NW, Suite 300
Washington, DC 20036

Unfortunately, Google is not in a position to provide you with legal advice.

If you have other questions regarding the subpoena, we encourage you to contact your attorney.

Thank you,

Google Legal Support

Interesting, no? My guess is that Kane got the same e-mail and just deleted the blog in the hopes this would go away. Unfortunately, it doesn't work like that, there is a law requiring internet companies, like Google, keep records of usage data, like the IP addresses of visitors to their sites, including Blogger.

What does this all mean? Since I don't have any connection to this case, and anyone who does has been identified already, I'm not sure if this is evidence that WalMart actually is evil like people say, or that their overpriced attorney is padding his billable hours. Either way I'm going to have a conversation with an attorney, although part of me wants to say screw 'em, bring it on.

It's unfortunate that we have become a country where people have to be afraid to express an opinion.


  1. Wow...bizarre. Thanks Abel for taking the time in trying to find out what happened and sharing the letter from Google Legal Support.

    With the info you provided, I did talk to Michael D. Billok, the attorney representing Walmart and he said that he can't provide any additional information.

    Additionally I Googled, "Secretary of Labor v. Wal-Mart Stores," and found a case back in 2004 that dealt with an egress violation 29 C.F.R. § 1910.37(k)(2)against Wal-Mart. So this is a continuing saga all about egress? http://openjurist.org/406/f3d/731/wal-mart-stores-inc-v-secretary-of-labor

    All this makes my stomach turn. Especially with all the great content, now vanished at the click of a mouse, that Kane and others provided through comments and posts. To a large extent the ability to write and post content on OSHA Underground as a contributing author enabled me to continue successfully in my combustible dust research project. On many a occasions, Kane and numerous visitors on the site always encouraged me to continue, which provided the much needed extra boost.

    I'll miss the OSHA Underground, like a friend that you grew up together with in the old neighborhood back in elementary school and all that is left is good memories from those days gone by.

  2. Such a shame - Literally. It's too bad corporate responsibility's so often an oxymoron. "The first thing we must do is kill all the lawyers." - Shakespeare, Henry VI

  3. What was the Walmart issue?

  4. I think china has a similar policy toward blogs ....
    we have come so far in obamanation

  5. I suspect this Walmart inquiry has to do with a 5a1 violation issued in response to the trampling death of a worker by black Friday shoppers at a Long Island Walmart in 2008. Look at OSHA inspection #311135933 (www.osha.gov) to see the citation.

    For the comment referring to obamanation--I prefer to address my outrage towards Walmart. But this is a blog for safety and health issues so I won't rant any further about the world's largest retailer. Except to point some responsibility at them for the demise of the osha underground.

  6. Creepy stuff...makes me feel a little sick inside.

    Here are some candid thoughts:
    I think it sucks that as government grows we lose our "underground"...literally. I think it is unfortunate, as just another person, that people can't vent, hypothesize, or think out loud for fear of those thoughts being taken out of context or possibly stripping our "right to remain silent". Once it's out there, it's out there...but,

    A. What did Kane have to hide? maybe nothing...

    B. Then Why delete it? For someone else? Would a CSHO ever say one thing formally and another off the record? They would if they were human.

    C. One may have contempt for Wal-Mart for the demise of OSHA underground but remember they are not the ones who wrote the law requiring Google to keep (and provide) the IP address... our Government did. Like the kids say: "don't hate the player, hate the game". Get it?

    D. I'm assuming the information they are looking for was presumably written by an CSHO? Yes? That is interesting indeed. It is usually the business person that is naked and subpoenaed for every last thought, email, and comment they have made while OSHA gets to present a slightly more composed side of the story as they are the initiators - well prepared.

    I suppose it's all speculation for now but it will be interesting to see what exactly they were looking for.

    I got a lot of good information and perception checks from reading that site. Sad to see it go.

    This instance goes a bit beyond the nature of our daily cognizance to OS&H but I think it has profound implications. No?

    I would say to NEN that it is OK to express our outrage towards the minorities whose actions and policies set the stage,directly or indirectly, for our daily lives. It's relevant. In fact, the less we focus on fundamental influences the more autonomous, thoughtless, and less informed our decisions become and the more we cut off our human gift of critical analysis.

    All this, and I still haven't addressed 5a1...

    I think it is abused. I think this Wal-Mart circumstance comes closer to an "act of God" than an act of negligence. I still can't believe it happened. "Holiday Shoppers" (as NY OSHA said) are a recognized Hazard? Are you kidding me? Why would we go to such an extent to penalize them. Wal-Mart is sued for 100's of millions of dollars each year. That doesn't bring this man back to life but the score is being settled.

    OSHA would be better off doing an analysis of this case and presenting the findings to businesses so that they can be better prepared.

    The notion that a $7,000 fine to Wal-Mart is going to make a difference is absurd. Leave the punitive fines to the courts.

    Look at it this way...
    Just another example of too much money and time and trouble and heart-ache over a 5a1 that MIGHT have a positive effect on .000000000000000000000000000000000000000000001 % of the US population.

    OSHA does not have to react publicly to every weird anomaly at a place of employment and contrive hazards (like: "holiday shoppers")to make the citizens of America safer.

  7. Anyone can access OSHA Underground archives:
    1. Search Google with keywords "osha underground".
    2. Click the Cached icon just below the description of the top result.
    You will see a copy of the OSHA Underground website.

  8. Shutting down the website is a real shame. OSHA Underground was often intertaining and sometimes downright insightful. Seems to me there is a genuine public interest in having such a website where both insiders and interlopers can express their unvarnished views on the agency and its policies. I hope Kane seeks competent legal advice. I look forward to again seeing the site.

  9. Interesting article I found ReadWriteWeb ,"Watch Out Trolls, Your Menacing Comments Could Lead to Big Fines Written by Sarah Perez / October 23, 2009 7:44 AM


    Sort of the situation at O/UG

    Thanks Anon for the method in still viewing O/UG cached content

  10. Recognized hazards: crowds are a recognized hazard, and just like cattle or machinery or chemicals, there is a wealth of info on controls. Crowd control is a recognized social and physical science, internationally. New York knows this. Retailer knows this. It is incorporated into building design and product display.

  11. Does anyone know yet what post that Google received a subpoena for information related to anonymous comments posted on O/UG.

    With a bit of reverse engineering in conjunction with Anon's help in viewing O/UG cached content we might be on to something. The Title of the post would help immensely

  12. This cached version posted on O/UG Monday, June 8, 2009
    "Wal-mart and the General Duty Clause" might hold a clue.,+osha+underground&cd=2&hl=en&ct=clnk&gl=us&client=firefox-a

    65 comments. Wow! Now which one of you Anon's is causing all the ruckus?

  13. Thanks JohnA. That was helpful link. This is turning into a real soap opera. I'm gonna need some diacetyl filled popcorn in a bit to keep up.

  14. Freedom of speech is gone.

  15. Baruch Fellner is the lead attorney on the case. OSHA has never beaten him.

  16. How come no one notices that the supeona went to Abel as he posted? What is in his Blog that makes Walmart want to know a person's identity? That is the real issue.

  17. First, everyone needs to keep in mind that I am speculating that the OSHA Underground disappeared because of the same subpoena that Google got for this blog, I don't know who Kane is and I haven't heard from Kane, I'm just connecting the dots.

    Normally I would delete the first comment that referenced Obamanation because this isn't a political blog, but the issue does effect this blog so I want to set one thing straight: The law that was used to subpoena Google was written and passed under the previous administration, it's either a part of, or an offshoot of, the Patriot Act, Passed under a Republican Congress and signed by a Republican President. I think the original intent was to allow law enforcement to backtrack a criminals activities to build a case.

    NEN - I like what you said and the way you said it.

    Jesse - keep in mind this isn't the government doing this, it's a private company doing this.

    As for A-B: I presume that Kane was trying to protect his identity, if that information is divulged under subpoena, that anonymity goes away.

    C. Got it, but just because there is a law allowing something doesn't mean we should do it. The law says I can sue you for any reason, should I? The Constitution says I can use racial slurs, should I? As children we're taught right from wrong, but that doesn't seem to apply here.

    D. We don't know who wrote the comment, we don't even know which comment they're looking at, but you're wrong about the employer only being the one who gets laid open. You don't see it, but when a case heads towards trial we're put through the ringer. I know someone who was once asked questions under deposition for 12 days. That's right TWELVE DAYS of an opposing attorney questioning every action, reason and decision.

    On an average inspection it's true that the employer probably gets the worst of it (although not always), but when we go to trial, we're the ones who are abused.

    As for Wal-Mart and the trampling, you're wrong, it is very much a recognized hazard for retail stores, concerts, and sporting events, any place large crowds gather. Check out how the police work crowd control, they're not just looking for criminals, they're making sure people don't get trampled.

    I did a quick search and found 4 different instances of people being trampled at Wal-Mart stores prior to the 11/08 death. Here are the links:

    12/03 http://www.highbeam.com/doc/1P2-1513325.html
    ?? http://www.guzer.com/videos/walmart_stampede.php
    11/05 http://www.wtopnews.com/index.php?sid=629899&nid=25
    11/06 http://www.jsonline.com/news/milwaukee/29212964.html

    While it's true none of those people hurt were employees, Wal-Mart has a large Loss Prevention group that should have dealt with the problem and didn't.

    Don't tell me Wal-Mart couldn't foresee this.

    I do agree that Wal-Mart is too often targeted with lawsuits that have no basis, and I'm all for the people who file truly frivolous claims being required to pay for all legal bills, it's only fair.


    Popcorn, I like that!

    I talked to a friend who told me that while it's true that we've never beaten Fellner, we've never really lost to him either. Apparently Mr. Fellner is allergic to the inside of a court room, none of our cases with him have ever gone to trial.

  18. http://ohsonline.com/articles/2009/11/13/what-happened-to-osha-underground.aspx

  19. I was not defending the "Obamanation" comment or any administration - just highlighting what you said about

    "there is a law requiring internet companies, like Google, keep records of usage data, like the IP addresses of visitors to their sites, including Blogger"

    Wal-Mart is simply exploiting/utilizing that law.

    I never argued that "it's government doing this". My comment suggest that it is they who have enabled/allowed it. Wal-Mart is simply exercising their legal rights (and NO, I'm not defending them either).

    I just think it's thought provoking. I never imagined a scenario where the patriot act would be used in this context.

    Not to meddle in the actual Wal-Mart case for too long either but...
    I just think it is not a high priority for OSHA to deal with. There are just so many other layers of prevention (albeit they failed in this case) such as Fire and Police that are much more in tune to things like this.

    I challenge NY OSHA to prioritize. They have far greater issues on their hands. This should be a criminal case for the people that trampled and plenty of justice will have been served. NOW THAT would set a precedent. That would make "holiday shoppers" think twice before using someones face for a floor mat (disgusting!) and that would make these workers safer. Not a $7000 fine to the world's largest business.

    I'm not denying that crowds can't turn into riots. I'm questioning whose jurisdiction it should be (not technically but effectively) and also questioning the consistency.

    Did OSHA write up the retailer Von Maur when a guy came in and shot up the store? Not apples to apples but isn't that a recognized hazard?: "crazy people"?

    I appreciate the insight to the 12 day disposition. Again, I was not trying to be a jerk. Just pointing out that OSHA usually has the opportunity to be better prepared and composed. Just intriguing that this case could possibly bring a new filter to CSHO's demeanor "outside of work". Let's face it, we tend to let our guard down when we are blogging and such. Probably because we are not seemingly "in public" even though we really are. I guess I'm just wondering if the person whose words they might be after ever thought in a million years that this would happen????

  20. oh, and thank you fro the links on the previous trampling deaths

  21. I read/watched the articles and as a businessman still draw the same conclusions.

    This was all "customer" on "customer" violence.
    Like mosh pits at a rock concert.

    You have to remember that all I am challenging people to do is weigh the costs here. Wal-Mart has BILLIONS of entrants per year. Not to sound cold-hearted but these instances highlight how small of a problem this is. Your calculators don't have enough zeros after the decimal to calculate these odds. Trying to stop it is like trying to stop car accidents - or shootings - or getting struck by lightning - good luck.

    They are called anomalies.

    A cost benefit analysis would say spend time on something else.

  22. Jesse, I do not think you were being a jerk, nor was I trying to be. The problem with the written word is that the writers emotion isn't always accurately conveyed, what is intended as a funny, smart-aleck comment can sometimes be read as mean spirited.

    My comment about Obamanation wasn't meant for you, it was for a previous commenter who blamed the law that allows this whole subpoena/blog fiasco on this administration, instead of the previous.

    As for OSHA spending time on a case like this, we have to investigate. OSHA has the responsibility for workplace S&H. The difference between a situation like this and a shooting, is that all of the states have laws prohibiting one person killing from another people, but I don't think any of them have a law for employers controlling crowds, and none of them have laws to protect employees. So while it's true that the local police are probably better trained to handle these situations, they lack the enforcement mechanism.

    We're also not talking about crowd control on a day to day basis, we're talking about specific instances of high volume traffic, like Black Friday, or the release of certain items (like Xbox or PlayStation, anything that's going to be very popular and a limited release).

    The thing is, it's not a difficult thing to do, you don't just fling the doors open and let everyone rush in, you use barriers to stop surges, and you limit the number of people allowed in at any given minute, you have the people lineup instead of crowd around the door, these are simple, inexpensive fixes that even the police use.

    I wouldn't expect a company that manufactures automobiles, or a nursing home, or a shipyard to know and deal with an issue like, but retailers have had this problem for awhile and most of them do deal with the crowds properly. So why can't Wal-Mart?

  23. I can't imagine being deposed for 12 days.

  24. If you think this is a lot over a $7000 fine just think what will be going on over the BP fine, and any Dust explosions. The OSHA fine is not the real issue; it is the Civil Law Suits that get the bolster from a Serious violation being upheld.

    ahhh the loss of personal responsibility. There is an Independent Employee act because I can't always be a baby sitter to employees who won't follow the rules. How do I enforce rules on customers? Verbal warning, Written Notice, and kick them out of the store? There are already civil suits that have been upheld against Wal-Mart for banning a customer because of continued shoplifting.

  25. The whole Black Friday is the problem. Target is offering $3 toasters and other appliances on the cheap. It is first come, no raincheck. I am surprised that more fights do not occur.

  26. this isn't about a 7000 dollar fine. This is about having to implement crowd control for every store in the nation for every major sale. Walmart is considering cost. If they can somehow find a way to get out of this, they can prevent having to spend possibly millions per year.

    I do agree that other people should be prosecuted. Easy way to find out, identify the wanted product, find sales receipts for that product, and check against security tapes. If there are matches arrest the ones that can be identified.

    Local Walmart just announced that they will not be closing the doors this time. eliminates that hazard, but may move it indoors.

    I guess I wonder what the lawyers think they can gain from the information, nothing I saw helps their case. Maybe they think there was some conflict of interest.

    Kane's first stream of thought did as much to identify the issues with the defense of the citation than any other comment.

  27. Interesting headline on Presidents China visit, "President Obama Tells Chinese Students Unrestricted Internet Access Makes the U.S. Stronger, Free Speech Makes Him a Better Leader"

    I'm still trying to figure out the definition of "unrestricted." The subpoena situation with O/UG will have profound implications throughout the NET where many will have second thoughts in posting commentary with an alias screen name.

    Workers might not be open anymore in discussing issues of workplace health and safety where the threat of a potential employer reprisal exists.
    Additionally, CSHO's might be less likely in posting comments anonymously where the possibility of their identity being revealed.

  28. ...And this is why ( with all due respect to Abel for wanting to keep the focus on OS&H) we can't ignore the policy.

  29. Right on cue, Mr. President
    Maybe we need another site for policy - this interest me a great deal...
    My degree is in political science and public administration.
    Either way, we've got to talk about this. Kinda makes me chuckle the irony in it all. What a colorful world we live in.

  30. Far out, look at all those NBA jerseys for sale!

    Abel, it may be small comfort to you to know that federal courts (including OHRSC) cap depositions at 7 hours now, unless the court allows otherwise.

    I think Wal-Mart has a good defense. I don't see how Black Friday sales are a reasonably foreseeable hazard to retail employees, considering the vast, vast majority of them go off without a hitch and no reports of injuries (except, of course, for the parents who get into a fistfight over the last Tickle Me Elmo Doll on the shelf). Maybe everyone else in the world but Wal-Mart implements strict crowd control measures . . . but I doubt it. My personal observation is that the stores open their doors and that's about it.

    I tried to look at the four links you provided, but the first I couldn't access, the second one the video was not working, and the third and fourth involved customers getting run over or fighting each other (and not employees) for video games and/or consoles. How does this implicate employee exposure and OSHA? I'm not saying it's a good idea to line up 100 customers and have them race for the 10 PS3s in the store. But civil lawsuits will get filed against the company for boneheaded practices (or lack thereof) that result in customers hurting customers.

    Regarding the subpoena to OSHA Underground, I imagine OSHA wants to know whether Kane is the CSHO who issued the trampling citation, for starters. I seriously doubt it, but if he is, Wal-Mart's attorneys will paint him as looking like he has a personal vendetta against Wal-Mart.

  31. First, let me thank John for posting all the links to the archived OSHA Underground and the other research he's done. He is doing things I just haven't had time to do, so Thank You John.

    Second, the Wal-Mart case has nothing to do with $7,000, there are just some companies that just challenge every thing.

    Most of us as CSHOs know, or have heard, of companies that will as a matter of policy, deny OSHA entry into their establishments. Sometimes it gets to the point that we have to get preemptive search warrants. And I'm OK with that, the companies are guaranteed certain rights and it's OK to exercise those rights.

    Wal-Mart has chosen a policy of "fight everything" and that's OK, we know that so we just make sure we have everything in place so we don't lose.

    RT, if you liked the NBA jersey, you would have loved the Nike shoes, or the site that sold, uhhmm, under garments, for both men and women.

    RT, the reason that Wal-Mart doesn't have a good defense is that crowd control has been an issue for a long time. Most other companies don't have the problem because most of them do it the right way. The single biggest fix seems to be not letting people mob-up around the door.

    Have you ever noticed that on the opening night of a big movie premier that the theaters all make people stand in line? This prevents surges, which is when people usually fall and get hurt.

    Imagine if theaters didn't do this and the crowds were allowed to push forward, what do you think the survival probability of the ticket taker is?

    And it's true that the videos I linked aren't employees being hurt, but it shows the problem with crowd surge, and in one of them you see an employee barely get out of the way.

    For large retailers, this is NOT A NEW HAZARD!!!

    Just to clarify, the subpoena isn't from SOL, it's from Wal-Mart's outside attorney.

  32. I saw that OSHA is releasing an awareness communication on "crowd control" related items for "Black Friday". I commend OSHA for this type of educational preemptive effort. It is economical to boot (knowledge is free and printing is cheap!) The effectiveness of the communication will speak for itself at a later date.

    As I read the RT/Abel exchange I think I can lend some objectivity to the divide between OSHA and OTHERS.

    It is my belief that the motivation behind myself and others for continuing to question this matter is not the definitions of the words "recognized" and "hazard" but the air that surrounds the notion AND the fundamentals of the perception OSHA has towards how we avoid hazards and how/why we enforce against them.

    I think I speak for many others that don't see the benefit or justice in creating so many RULES for such EXCEPTIONAL EXCEPTIONS. In fact some might call it a philosophical fallacy.

    And this is why when my Area OSHA folks use terms like "common sense", industry "standard", or "recognized" hazard it twists my gut and I laugh.

    The odds of getting struck by lightning are better than being trampled to death by crazed shoppers. There is nothing "common" about it. In fact, it is a STATISTICAL certainty that you wont get trampled to death this year, rope lines or not. Assuming it WILL HAPPEN does not qualify as common sense.

  33. The Infinite Power of Hind Sight:

    Recognizing things after the fact does not sell all of us on OSHA's infinite wisdom.

    We don't tell people "don't stand on the sidewalk; you might get hit", but there is a possibility that you will get run over. In hind sight it would be easy to "recognize" the "hazard" if someone got hit, but going into it people are not assuming it will, preparing for the possibility, or anything else of the nature. This is because everyday people weight the costs of their actions...it's called a cost benefit analysis. Here's common sense: People are more likely not to use the sidewalk because it's raining out than they are because of the risk of the "hazard" of being hit by a car. People are not stupid for using sidewalks and businesses are not stupid for not forming lines on Black Friday.

    This is how our brains work, as humans, under NORMAL circumstances.

    I don't think that OSHA can successfully hold people's cognitive, preemptive analysis of hazards to such a height of perfection (defying odds of 1 in a billion) by using such a flawlessly retrospective filter as HIND SIGHT. Especially while overlooking the fact that so many deaths still happen while driving (which IS a recognized hazard - by most - and it IS common sense/knowledge that cars are dangerous)

    "You should have known that man would have gotten trampled"..... NO - No, they shouldn't have. No one in their right mind would ASSUME people would be so sick, so violent. THIS IS WHY IT SHOCKS THE PUBLIC WHEN IT HAPPENS. Shock is the emotion people get when things are NOT "normal" "common" "standard" "predictable"... when all of the statistical and empirical evidence says it's NOT going to happen.

    But then again ANYTHING is possible and this seems to be the new age of safety enforcement.

    This is especially relevant. Not to the notion of OSHA recognizing, acknowledging, and communicating "hazards" but to the compliance enforcement, costs of compliance, and gravity of punishment for non-compliance. It is relevant when OSHA gives a Willful violation based on the idea that the employer either "knew" or "should have known" and uses terms like "common sense" "industry standard" and "recognized hazard" to bolster their argument.

    OSHA passes judgement from a 30,000 ft view or a microscope and nowhere in between.

    You see, people can be trampled even with a rope line up, and police presence, and a million other safeguards. And when the dust settles it's still easy to tell people what they could have done better. Like: wrap them all in bubble wrap, or tie their hands and feet together, or have an officer for each person in line. That sounds sarcastic but how many officers are enough? 1? 2? 3? 4? 5? 6? where does it end? You could have 1,000,000 and someone could STILL die...Remember, ANYTHING is possible.

    The line that is being crossed is a matter of grammatic tense...The idea that they should have done better not could have done better. And the idea that "here's a fine for not being able to calculate every possible risk" as opposed to every "probable" risk.

    Statistically speaking, Wal-Mart should get an award for the BILLIONS of admissions that happen safely at their doors each year.

    If OSHA was held to the same scrutiny as businesses they wouldn't survive. State Programs are broken. Compliance levels are LOW in many areas. Enforcement is inconsistent from city to county to state to region to coast... Many standards are decades old.

    Why couldn't OSHA have let them know it was going to happen?

    Why doesn't the public say:
    "You should have known, OSHA". "You should have known"

    Remember: The same IDIOTS that make the conscious decision to risk walking on side-walks with hazardous people-killers(cars)whizzing past them are the same idiots that are the employers AND employees and safety coordinators of businesses like Wal-Mart.

    Sometimes it feels like certain OSHA expectations are a psychology experiment in trying to get humans to not think and act like humans.

  34. Jesse let me ask you this, do you wear a seatbelt when driving? If you have kids, do you make them wear their seatbelts (or did you if your kids are older)?

    According to the Dept of Transportation, in 2008 there were just over 37,000 traffic fatalities in the US, with just under 3 TRILLION miles traveled. That's 12.7 deaths per BILLION miles.

    Most people drive 10,000 - 15,000 mile per year, so using your logic, the chances of dying in a car accident are almost non-existent, so do you wear your seatbelt?

    The problem with your statistical claim is that you are applying the statistics of averages to a statistically unique situation. Black Friday doesn't happen every minute of every hour of every day. It happens over a few minutes one time each year.

    And Wal-Mart should have known, the videos I linked to may not have been employees being hurt, but they show what a dangerous situation it is to have a closed door suddenly flung open when there is a mob outside. Wal-Mart has even admitted this, although not in so many words, when it said it wouldn't close the doors any more.

    The psychology/sociology of a mob is fascinating stuff, normal, rational individuals become crazed lunatics when in a mob. This is especially true in situations like that where a shopper thinks that someone else might get "something" that the shopper is entitled to. It's weird stuff, but again, the industry is aware of this, that's why it doesn't happen very often.

    Crowd management isn't even my expertise and I know this.

    Comparing this situation to walking on the sidewalk instead of the street also doesn't make sense. From the day we learn to walk we're told not to walk in the street. I remember as a kid being spanked for going into the street (that was a long time ago when spanking was still OK). As an adult, there are laws in every city saying "Don't Walk in the Street." If you do what happens? A nice police officer comes up to you and offers you a jay-walking ticket.

    I've never been spanked or ticketed for being in a large crowd.

    As for Willful, Willful violations aren't based on "knew or should have know with the exercise of reasonable diligence," (that applies to all violations) for Willful violations we have to show "intentional disregard" of the OSHA Act or "plain indifference" to the employees safety & health. It's a big legal hurdle for us.

    And the Wal-Mart citation was NOT Willful, just Serious.

    And finally, we are held up to the same scrutiny, in fact probably even more. Most employers don't have to answer to Congress. Most employers don't have the press constantly asking them why something is being done, or not being done. Most companies don't have the US Chamber of Commerce accusing them of hurting business while at the same time labor is accusing them of not doing enough to protect workers. We're damned if we do, damned if we don't.

    In one of your other comments you said the Dust NEP was a bad idea, but that was Congress saying to OSHA "You should have known," even though S&H in this country is still supposed to be the employers responsibility.

  35. There are limits to OSHA's jurisdiction. Mobs of shoppers running each other over does not implicate worker safety. It is not OSHA's job or mandate to make the nation safe for all, but rather to make the nation safe for employees.

    Jesse also has a point about the foreseeability of such things. Thousands of Wal-Marts (and other retailers) have Black Friday sales, and do nothing more than unlock their doors at 5 am. Most of the time people go into the store without hurting any employees.

    In my opinion, a major factor in the Wal-Mart case will be foreseeability. OSHA can't prove foreseeability by citing to general instances of people lining up at movie theaters or saying, without any tangible examples, that "everyone else must be doing some proper method of crowd control." For every one youtube video you show of a customer getting run over, I bet Wal-Mart could produce at least 50 videos showing folks acting like civilized human beings and entering the store in an orderly fashion, without any crowd control.

  36. http://www.osha.gov/OshDoc/data_General_Facts/Crowd_Control.pdf

  37. Awesome Anon.

    Thanks for sharing the OSHA Fact Sheet on Crowd Management Safety Tips For Retailers that was published November 19, 2009. It is great that this discussion in an odd sort of way brought up the crowd situation and revived dialogue on a topic that has been on the back-burners for awhile.

  38. most lawyers, including solicitors, are allergic to the inside of a court room.

  39. This comment has been removed by a blog administrator.

  40. How many times do I have to say it: THIS IS NOT A POLITICAL BLOG!!!

    If you hate the government, fine. If you hate OSHA, fine. If you hate people you perceive to be liberal, fine. But then start your own blog and rant there, this blog is about Safety & Health and OSHA's role in it.

    I let this blog get hijacked into a political discussion once, I won't let it happen again.

    Start your own blog, tell me where it is and I'll debate you there.

  41. So what do you think of this Dr. Michael's guy?

  42. I don't care about this case, but the subpoena is trampling on the first amendment. Many states have shield laws, and bloggers are journalists. Commentators are protected sources.

  43. and now the TSA is after bloggers...

    so much for anonymous...