By James L. Curtis, Daniel R. Birnbaum, and Craig B. Simonsen

Seyfarth Synopsis: Employers should prepare for the holiday shopping season and protect their employees from harm and injuries.

As the holiday shopping season approaches, OSHA has previously reminded retail and hospitality employers of the importance of taking safety precautions during the holiday season’s major sales events, such as Black Friday.

Holiday shopping has increasingly become associated with violence and hazards. There has been numerous instances of riots, shootings, and pepper-spray attacks in crowds looking for holiday deals.  In one case, a worker was trampled to death while a mob of shoppers rushed through the doors of a store to take advantage of a Black Friday sales event.  Events of violence and shooting at malls and retail establishments have become all too common in our society.  Additionally, retail distribution centers that fill customer orders are exceedingly busy at this time of year and often staffed with new and/or temporary workers.  Such increased staffing levels can lead to increased workplace accidents.

Under OSHA’s general duty clause, “employers are responsible for providing a place of employment free of recognized hazards that are likely to cause serious injury or death.”  To minimize injuries in the workplace during the holiday season, OSHA’s website on Holiday Workplace Safety provides employers with recommendations for crowd management plans and safe practices for retail distribution centers.

Retailers are advised to review and implement the OSHA suggestions for crowd management. Adopting, implementing, and training store employees on the crowd management plan will both lessen the risk of employee and shopper incidents, and will assist the employer in fending off potential OSHA enforcement proceedings, should an accident occur.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Benjamin D. Briggs, Brent I. Clark, Patrick D. Joyce, and Craig B. Simonsen

Smart technology setSeyfarth Synopsis: Keep your holidays happy and safe. At this time of year, with all of the joy, parties, and excitement the season brings, employers need to be especially vigilant to keep and maintain a safe workplace environment for employees and customers and other third parties. A distracted or inebriated employee may be an employee at risk, which may in-turn bring liability onto the employer.

The holidays are a time to redouble your focus on workplace safety. At this time of year, people can be distracted or tired and may be teaming with people they do not ordinarily work with due to others taking time off. Working with someone new, especially at high risk jobs, may be a recipe for disaster. It is important to ensure all employees are properly trained and qualified for the tasks they are being asked to perform, especially if a task is not within their normal job activities.

In addition, with all of the joy, parties, and excitement the season brings, employers need to be especially vigilant to keep and maintain a safe workplace for employees, customers, and other third parties. A distracted or inebriated employee may be an employee at risk, which may in-turn, bring liability onto the employer. The holidays are a good time to remind employees of drug and alcohol policies and to be on the lookout for violations of those policies. See Eleventh Circuit Says “NO” to Drunk Driving, and President Declares “National Impaired Driving Prevention Month”.

The holidays are also a time when your employees may be at risk for workplace violence, both from within the company and from third parties. Many employees will be excited about the time spent with friends and family, but many others may not have those opportunities. Be aware of the signs of a distressed and potentially violent employee. See for instance, Wave of Shootings Puts Workplace Violence Back in the Spotlight, and NIOSH Offers Free Training Program to Help Employers Address Safety Risks Faced by Home Healthcare Workers. We have also blogged about workplace safety risks from shoppers and third-parties. See Holiday Shopping and Crowd Management Safety Guidelines for Retailers,

In addition be on the lookout for other holiday workplace liability issues, especially at company holiday parties. For instance, in Don’t Let Too Much Eggnog Ruin Your Office Holiday Party: Tips to Limit Employer Liability at Company Parties, we suggested that employers consider these tips to minimize your organization’s exposure to legal liability and, more importantly, prevent an undesirable incident from occurring at your office holiday party:

  • Prior to the party, circulate a memo to reiterate your company’s policy against sexual and other forms of harassment. Remind employees in the memo that the policy applies to their conduct at company parties and other social events, and they should act in a professional manner at all times.
  • Set a tone of moderation by reminding employees of the company’s policy against the abuse of alcohol and zero tolerance with respect to the possession, use, or sale of illegal drugs.
  • Ensure your dress code prohibits any form of revealing or provocative attire, and remind employees that the policy applies at company-sponsored events.
  • If appropriate, allow employees to invite a spouse or their children to the party. Many employees might think twice about their actions if spouses and/or children are present.
  • Consider limiting the number of alcoholic drinks or the time during which alcohol will be served. In either case, stop serving alcohol well before the party ends.
  • Serve food at the party so employees are not consuming alcohol on an empty stomach and make sure there are plenty of non-alcoholic alternatives available.
  • Host the party at a restaurant or hire a caterer. Remind bartenders that they are not permitted to serve anyone who appears to be impaired or intoxicated and to notify a particular company representative if anyone appears to be impaired.
  • Remind managers to set a professional example, and designate several managers to be on the lookout for anyone who appears to be impaired or intoxicated.
  • Anticipate the need for alternative transportation and don’t allow employees who have been drinking heavily to drive home. If an employee appears to be heavily intoxicated, have a manager drive the employee home or ride with the employee in a cab to ensure he/she gets home safely.
  • Check your insurance policies to ensure they cover the company adequately, including any accidents or injuries that arise out of a company party or event.
  • Promptly investigate any complaints that are made after the party, and take any necessary remedial action for conduct that violates company policy.

Employers with questions or concerns about any of these issues or topics are encouraged to reach out to the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team or the Workplace Counseling & Solutions Team.

By James L. Curtis and Craig B. Simonsen

OSHA’s Assistant Secretary David Michaels has just “reminded” the chief executive officers and retail trade associations that it is “critical … to take safety precautions to protect workers who may be injured during the holiday season’s major sales events, such as Black Friday sales.”

Holiday shopping has increasingly become associated with violence and hazards. At one large national chain store in previous years “crowds who came looking for holiday deals came face-to-face with riots, shootings, and pepper-spray attacks”. CNN has noted that “violence marred Black Friday shopping in at least seven states, including California, where police say a woman doused fellow shoppers with pepper spray in a bid to snag a discounted video game console.”

In another  incident a worker was trampled to death while a mob of shoppers rushed through the doors of a big box store to take advantage of a Black Friday sales event. According to OSHA the store was not using the crowd management measures recommended in OSHA’s fact sheet – Crowd Management Safety Guidelines for Retailers, which provides employers with recommended elements for crowd management plans.

Michaels pointed out in his reminder that under the federal law “employers are responsible for providing a place of employment free of recognized hazards that are likely to cause serious injury or death.

Retailers are advised to review and implement the OSHA suggestions for crowd management. Adopting, implementing, and training store employees on the crowd management plan will both lessen the risk of employee and shopper incidents, and will assist the employer in fending off potential OSHA enforcement proceedings, should an accident occur.

By James L. Curtis, Brent I. Clark, Meagan Newman, and Craig B. Simonsen

Holiday shopping is increasingly becoming associated with violence and hazards. At one large national chain store last year “crowds who came looking for holiday deals came face-to-face with riots, shootings, and pepper-spray attacks”.  CNN notes that “violence marred Black Friday shopping in at least seven states, including California, where police say a woman doused fellow shoppers with pepper spray in a bid to snag a discounted video game console.”

These incidents add to a previous incident where a worker was trampled to death while a mob of shoppers rushed through the doors of a big box store to take advantage of a Black Friday sales event. According to the Occupational Safety and Health Administration (OSHA) the store was not using the crowd management measures recommended in OSHA’s fact sheet – Crowd Management Safety Guidelines for Retailers, which provides employers with recommended elements for crowd management plans.

OSHA’s Assistant Secretary David Michaels also sent a letter to the CEOs of fourteen major retail companies, saying that “crowd-related injuries during special retail sales and promotional events have increased during recent years.” “Many of these incidents can be prevented by adopting a crowd management plan, and this [OSHA] fact sheet provides retail employers with guidelines for avoiding injuries during the holiday shopping season.”

Michaels points out that under the federal law “employers are responsible for providing a place of employment free of recognized hazards that are likely to cause serious injury or death. OSHA encourages employers to plan for crowd management several weeks, or even months, in advance of sales events that draw large crowds. We recommend that employers and retail store owners adopt a plan that includes, at a minimum, the elements outlined in the fact sheet.”

In addition, the recently released U.S. Bureau of Labor Statistics (BOL) preliminary findings of the 2011 Census of Fatal Occupational Injuries Summary, notes that retail fatalities were sufficiently prominent as to be quantified. OSHA uses this data when developing strategies for what industries to focus OSHA’s enforcement efforts.

Retailers are advised to review and implement the OSHA suggestions for crowd management. Adopting, implementing, and training store employees on the crowd management plan will both lessen the risk of employee and shopper incidents, and will assist the employer in fending off potential OSHA enforcement proceedings.