OSHA
cited Jay Management Inc. (Jay) for a General Duty Clause violation
after a worker at a convenience store in Irvington, New Jersey, was fatally
shot during a robbery.
A History of Violence
At the
Getty gas station and convenience store on Stuyvesant Avenue in Irvington,
security was less than optimal. Between 2010 and 2015, more than 20 incidents
of theft, armed robbery, and fights occurred at the store, culminating in the
October 26, 2015, shooting death of 57-year-old Ashiwin Patel, a clerk at the
store. Following the incident, the local prosecutor’s office offered a
$10,000 reward for information leading to an arrest (none has yet been made).
OSHA also conducted an investigation, determining not only that Jay had
committed a serious violation of the General Duty Clause in failing to
protect workers from exposure to violence but also that it had willfully done
so.
General
Duty Clause citations are rare, in part because a serious hazard must exist
in order for a General Duty Clause citation to be issued—OSHA will not issue
a General Duty Clause citation for any hazard that is classified as less than
serious. In order to be classified as serious, the hazard must be capable of
causing an accident or illness that would most likely result in death or
serious physical harm—and the employer must know, or be capable of knowing,
about the hazard. For example, if the employer had no way to know of the
hazard because it was caused by unpreventable employee misconduct, the
employer cannot be said to have exposed the worker to the hazard.
But Was It Willful?
Willful
General Duty Clause citations are even more rare, because they must meet a
higher standard of proof. In order to be classified as willful, OSHA must
feel that it can make the case that the employer either knowingly failed to
comply with a legal requirement or acted with plain indifference to employee
safety. But, given that low-level violence is endemic in so many workplaces,
what was it about Jay’s case that put it over OSHA’s threshold for “willful”?
The
key seems to have been what Jay did—or, rather, didn’t do—in the wake of
Patel’s death. According to OSHA, even though Jay was “well aware” of the
location’s violent history, the employer did nothing to implement safety
measures—even after Patel’s
death.
To fail to
protect workers before an incident is foolish; to fail to correct hazards
after a worker has died is a clear—willful—demonstration of unconcern.
Commonsense Measures
When it
comes to preventing violence, Jay is not the only retail/convenience store
employer to fail to take even the simplest commonsense precautions. In a 2015
study, researchers at the National Institute for Occupational Safety and
Health (NIOSH) found that convenience store owners in Texas did not put in
place some basic workplace violence prevention measures. The most commonly
neglected measures, according to the study, were the posting of warning signs
about the presence of security cameras and the placement of product displays
and signage that obstructed visibility at the front of the store.
According
to OSHA, Jay failed to do both those things, as well as failing to:
- Develop
a written workplace violence prevention program;
- Install
panic buttons to ensure rapid law enforcement response;
- Install
physical barriers to separate customers from store associates at the
cash register;
- Train
workers in workplace violence prevention and response procedures; and
- Prohibit
working alone.
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