Last week Wal-Mart was in the news again. Wal-Mart is also in court again. This time the case involves a celebrity. Actor-comedian Tracy Morgan sued Wal-Mart over the crash that killed comedian Jimmy Mack and injured Morgan and one other passenger of a limo bus rear-ended by a Wal-Mart truck. The case, Morgan v. Wal-Mart Stores, Inc 14-cv-4388 (U.S. District Court, D.N.J., Trenton) has raised questions about Wal-Mart’s safety practices with its drivers in particular. However, this is not the first instance in which Wal-Mart has had to respond to allegations that its worker safety practices may have been sub-par. After the jump, we’ll look at this and some other Wal-Mart cases to see what we can learn about worker safety practices…
So what caused the fatal crash? Mr. Morgan alleges in his Complaint that the driver, Kevin Roper, was driving 65 miles an hour in a construction zone with a 45-mile-an hour speed limit. The limo bus had been at a dead stop when the Wal-Mart truck, driven by Roper, crashed into it after Roper fell asleep behind the steering wheel. Roper had allegedly traveled more than 700 miles from his home in Georgia to a Wal-Mart facility in Delaware and then began working approximately 14 hours at his shift where he made deliveries and pickups in New Jersey, Delaware and Pennsylvania. The National Transportation Safety Board’s preliminary report appears to confirm these allegations. Roper faces criminal charges of death by auto and four counts of assault by auto in New Jersey. Morgan alleges that Wal-Mart knew or should have known that it was unreasonable for Roper to first commute more than 700 miles and then work approximately 14 hours. Federal regulations limit truck drivers to 11 hours of driving and 14 hours of on-duty time each day. There are also weekly limits on driving hours.
What has Wal-Mart’s response been? Its official response to the Complaint was to neither confirm nor deny that Roper is a Wal-Mart employee, and to raise the “seat belt defense” (i.e. Morgan et al were not wearing their seat belts, which either contributed to or caused the injuries in question). Many were outraged by the contents of Wal-Mart’s Answer to the Complaint. To be fair, those are standard answers in a complaint involving auto accidents and injuries. The attorneys answering on their behalf subject themselves to the risk of malpractice allegations if they do not include those responses in an Answer. At the same time, the driver has been suspended pending the outcome of Wal-Mart’s investigation, and, Wal-Mart says it wishes to reach a settlement.
While Morgan v. Wal-Mart Stores, Inc may be the first safety-related case against Wal-Mart that has involved a celebrity, it is not the first time that Wal-Mart has had to deal with allegations that it has exposed its employees to safety hazards. In August, 2013, Wal-Mart agreed to pay $190,000 to settle OSHA allegations of unsafe working conditions in 2, 857 Wal-Mart and Sam’s Club stores under federal jurisdiction in 28 states. The settlement arose out of OSHA inspections in 2011 at a store in Rochester, New York, where violations included without limitation: a) failure to train employees to safely use a trash compactor, including how to relieve hydraulic stored energy; b)bypassing a switch to allow the compactor to operate with the access door open; c) employees using corrosive cleaners and cleaning up blood without proper protection and adequate training; d) illegible exit signs; Federal officials initially wanted to impose higher fines, because these problems were allegedly repeat violations found at other Wal-Mart stores. The settlement prohibited employees from entering trash compactors and required compactors to be locked when not in use, and to be used only with the door closed and under the supervision of a trained manager. employee exposure to dangers from trash compactors and cleaning duties.
In July, 2013, more than 30 non-union Wal-Mart warehouse workers in California undertook a surprise two-day strike in protest for what they alleged to be retaliation for exposing safety risks. Specifically, in early 2012 the workers filed a multitude of complaints with the California Division of Occupational Safety and Health, including : a) emergency exits blocked by boxes and merchandise; b) non-working forklift brakes, seatbelts and horns; c) workers often being compelled to load shipping containers in the dark. Wal-Mart allegedly fired a number of the complaining employees in retaliation. In September, 2012 the warehouse workers completed a 50-mile 6-day pilgrimage across Southern California, also intended as a protest of the allegedly unsafe working conditions.
Assuming all of the allegations in all three cases to be true, I am asking myself if I really need to tell any of you what the take-aways are here. So much would seem to be obvious, but here are some anyway:
- Either familiarize yourself or hire or retain someone who is familiar with federal and state occupational safety hazard laws and regulations;
- Make sure that you have policies and procedures in place that ensure your compliance with all applicable safety hazard laws and regulations and train your managers on these policies and procedures;
- Take all reports or complaints about safety violations seriously;
- Remember that laws and regulations change over time. Periodically review your polices, procedures and training to ensure that they are still in compliance with current laws and regulations.
- Regarding specific allegations in Morgan v. Wal-Mart Stores, Inc., monitor the amount of hours your drivers are driving and the length of their commute to your premises prior to starting their shifts.
This should be enough to get you started! Join The Emplawyerologist next week with its wrap-up post of its Wal-Mart series.
Disclaimer: This post’s contents are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent local employment counsel on any issues discussed here.
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