OSHA and Walmart: 'Cookie-Cutter' Compliance Won't Do, 5th Circ. Rules

By Jonathan R. Tung, Esq. on April 08, 2016 | Last updated on March 21, 2019

A recent Fifth Circuit ruling, which affirmed OSHRC's interpretation of a key OSHA provision, should prove helpful to companies concerned about compliance issues. Apparently, a cookie-cutter approach simply will not do. As Walmart learned, if you're a company with multiple identical buildings that must be OSHA compliant, it's no good arguing "they're all the same, anyway."

It was a strange outcome at the circuit level. Although it was found that the offending company Walmart was in violation of OSHA, it still managed to wiggle itself off the hook with a truly modest sum: $1,700.

Hazard Assessments

Walmart's troubles with the Occupational Safety & Health Review Commission began when the agency determined that one of the company's distribution centers in Texas was in violation of sec. 1910.132 (d)(1) ("1910"). The provision requires that applicable employers conduct hazard assessments of the premises. The exact language is as follows:

"The employer shall assess the workplace to determine if hazards are present, or are likely to be present, which necessitate the use of personal protective equipment (PPE). " sec. 1910.132 (d)(1).

An administrative law judge made the determination that Walmart violated 1910 and that the Secretary of Labor had based his determination of Walmart's alleged violation on a reasonable interpretation of the law.

Walmart objected to any claims that it was in violation of OSHA or other federal laws.

What is material here is the fact that Walmart is gigantic and operates 120 distribution centers across the nation. In 2006, Walmart performed a hazard assessment of one of its distribution centers in Searcy, Arkansas pursuant to sec. 1910.132(d)(1).

The argument that Walmart tried to push was that it was not required to conduct a hazard check at its Texas distribution center because the Arkansas check was enough as both centers were essentially the same in layout and design. Individual checks, they argued, were not necessary and and not required by the letter of the law.

The ALJ rejected this approach, and was affirmed by the OSHRC.

The problem is that 1910 is consistent with many interpretations. The Circuit would not disturb the decisions of the lower tribunals because the ambiguity of 1910's language would tend to work in their favor. The analysis essentially went like this. 1910's language is plainly ambiguous and could reasonably be understood either by Walmart's interpretation or the ALJ's. But since the circuit was bound by a standard of review that entitled the Commission "substantial deference," any reasonable interpretation used by the lower tribunals would be enough to support the required deference by the circuit court.

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