“Black Friday” is the day after Thanksgiving and considered by many to be the start of the holiday shopping season. In recent times, the term “Black Friday” has been associated with the concept that retailers’ shift from operating at a loss (or in the “red”) to operating with a profit (in the “black”). The term, however, originated in the 1960s to describe the increased traffic and crowds caused by the combination of shoppers and football fans descending on Philadelphia to attend the annual Army-Navy football game that was traditionally played on the Saturday following Thanksgiving.

Aside from the historic references and financial connotations associated with the term, “Black Friday” is beginning to get a bad reputation in the public eye. More and more, the media has reported numerous stories of shoppers’ disrespectful and violent behavior during holiday sales. The news stories are not just highlighting bad behavior—both shoppers and employees have been injured and killed in the holiday shopping frenzy.

On November 12, 2014, the Occupational Safety and Health Administration (OSHA) sent letters to major retailers and retail trade associations reminding them of the need to protect retail employees during the holiday season’s major shopping events, such as those that occur on Black Friday. OSHA even reminded the retailers that a worker was once trampled to death by shoppers who were rushing to take advantage of a Black Friday sales event.

Along with the letter, OSHA issued a fact sheet entitled “Crowd Management Safety Guidelines for Retailers.” The guidelines recommend that “crowd management planning” include three elements: “planning,” “pre-event set-up,” and “during the sales event” components. OSHA also included a recommendation on creating a plan for emergency situations.

OSHA recommends a variety of precautionary steps including hiring additional staff and trained security guards, designating a store manager to make key decisions during the sales event, training employees on crowd management, and developing an emergency plan that contemplates potential dangers such as overcrowding, crowd rushing, and violent acts. OSHA also recommends controlling the location of customer access and egress, installing barricades and rope lines with breaks and turns for crowd management, posting proper signage, placing sale items in multiple locations within the store to limit overcrowding in any one place, and using a variety of devices to communicate with customers and staff.

OSHA concludes its letter with a reminder that “[w]ith thoughtful planning and implementation of an effective crowd management action plan and maintaining emergency exits free of obstructions, we all can have a safe and happy holiday season.”

Some retail employers will appreciate OSHA’s attempt to assist managing a shopping event that has taken on a life of its own. However, employers also must be aware of the potential implication of this seemingly helpful set of guidelines. The letter and guidelines may be a wolf in sheep’s clothing.

Following the fatality of the retail employee who was trampled to death, OSHA investigated and ultimately issued a single citation alleging a violation under section 5(a)(1) of the Occupational Safety and Health Act (OSH Act) of 1970, otherwise known as the “General Duty Clause.”

OSHA uses the General Duty Clause when there is not a specific regulation under which a citation may be issued. Section 5(a)(1) mandates that each employer “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” A four-part test has been created to determine whether a violation of the General Duty Clause has occurred:

  1. Does a condition or activity in the workplace present a hazard to an employee?
  2. Is the condition or activity recognized as a hazard?
  3. Is the hazard causing or likely to cause death or serious physical harm to employees?
  4. Does a feasible means exist to eliminate or materially reduce the hazard?

When assessing the first element, a “hazard” may exist even if no injury has occurred. The Occupational Safety and Health Review Commission has gone so far as ruling that “the existence of a hazard is established if the hazard can occur under other than a freakish or utterly implausible concurrence of circumstances.” The threshold for establishing the existence of a “hazard” is relatively low.

For the second element to be established, OSHA must prove that the employer or the industry recognized the existence of the hazard. To prove hazard recognition, OSHA can rely on a variety of possible avenues of notice such as industry knowledge, actual knowledge of prior accidents, prior injuries, employee complaints, warnings communicated by an employee, safety efforts taken by the employer to mitigate the hazard, or the obvious or glaring nature of the hazard. If a supervisor is aware of a hazard, knowledge of the hazard will be imputed to the employer.

To establish the third element, OSHA needs to show that the hazard is likely to result in death or serious physical harm. OSHA is not required to establish that the accident was likely to occur; OSHA need only establish that, if an accident occurs, death or serious physical harm is likely.

Finally, feasibility of abatement does not mean that the hazard is completely eliminated. OSHA must prove that there are actions that can be taken to significantly reduce the hazard. To be feasible, the abatement must be economically and technologically possible.

If an accident occurs during a shopping event and a worker is injured or killed, OSHA will likely use its November 12, 2014, letter and newly-published guidelines to support a General Duty Clause citation. OSHA may be trying to strengthen its position and general awareness that (1) a hazard exists; (2) retail employers and the industry are on notice of the hazard; (3) the hazard is likely to result in death or serious physical harm; and (4) there are feasible methods to abate the hazard.

Depending on the severity of the injury and the action or inaction taken by a retailer, an employer can expect citations ranging from “Serious,” which carries a penalty of up to $7,000 per citation, to “Willful,” which can carry a penalty of up to $70,000 per citation. If there is a fatality, additional criminal and civil penalties may be attached.

It is not too late to start your holiday planning. Keep your employees and your company safe.