Retailer - Fall 2016

NEWS & ANALYSIS

Don’t let a “crowd crush” ruin the holiday retail season for your brick-and-mortar employees

As more consumers move to shopping online, retailers expect to lose some in-person traffic at stores this holiday season. Still, in-person shopping is not going away. Shoppers are expected to be more focused (because they will have done their browsing on the internet before coming to the store) and to buy more when they come. In fact, the National Retail Federation projects a 3.2 increase in retail sales for the 2016 holiday season (November and December) over the corresponding period in 2015.

And, as always, retailers can continue to expect large crowds looking for deals during Black Friday and other special sales.

That's the good news.

Here’s the bad. Large crowds of customers can be dangerous to employees and to the customers themselves, with risks of shoving, trampling, fire, and even acts of violence.

Shoppers who leave their homes to line up at 2 a.m. for the big Black Friday sale are thinking about getting those bargains and perhaps not so much about the safety of themselves, their fellow customers, and store employees. But the risks are real. As an example, on Black Friday 2008, an employee at a store in Long Island suffocated and died after a crowd rushed the entrance when the doors opened.

In addition to the sheer horror of having an employee become seriously injured or even killed in a retail crowd incident, a retail employer could face liability under the Occupational Safety and Health Act and workers’ compensation laws. Depending on the laws in your state, the employer could even, possibly, face tort liability and punitive damages if the employer’s precautions were so inadequate as to be substantially certain to cause serious injury or death.

Crowd dynamics

According to at least one researcher of crowd behavior quoted in “Crush Point,” a 2011 New Yorker article by John Seabrook, most Black Friday injuries and deaths do not result from fights over low-priced items or even panicked customer stampedes. Rather, they “are caused by ‘crazes’—people are usually moving toward something they want, rather than away from something they fear, and, if you’re caught up in a crush, you’re just as likely to die on your feet as under the feet of others, squashed by the pressure of bodies smashing into you.” The article describes a 1979 concert of The Who in Cincinnati in which 11 people were killed. The venue did not provide reserved seating, and fans had begun lining up for the concert hours ahead of time. When about 8,000 people had assembled and the doors were still locked, the band began a sound check, which caused many in the crowd to believe that the concert had begun. People in the rear began moving forward, while people in the front, who were not being allowed in yet, pushed back, causing “waves” that resulted in “piles” of people. When one fell down, the others standing nearby fell, too, because they had nowhere else to go.

In a “crowd crush,” according to the New Yorker article, “you feel pressure on all sides of your body, and realize that you can’t raise your arms. You are pulled off your feet, and welded into a block of people. The crowd force squeezes the air out of your lungs, and you struggle to take another breath.”

According to the article, the general public shouldn’t be so quick to blame so-called “greedy shoppers” for Black Friday and other crowd-related shopping incidents. And retail employers need to ensure that eager shoppers do not endanger themselves or store employees.

OSHA guidance

What can a retailer do to avoid having the best shopping day of the year turn into the worst? It all starts with planning. OSHA has prepared guidelines to help employers and store owners avoid injuries during the holiday shopping season, or other events where large crowds may gather. OSHA emphasizes that planning – including crowd management, pre-event setup, actions during the event, and emergency situation management – should take place well before an event that is expected to draw a large crowd. The following recommendations come directly from OSHA’s website.

Planning

• Where large crowds are expected, hire additional staff as needed and have trained security or crowd management personnel or police officers on site.
• Create a detailed staffing plan that designates a location for each worker. Based on the size of the crowd expected, determine the number of workers that are needed in various locations to ensure the safety of the event (e.g., near the door entrances and throughout the store).
• Ensure that workers are properly trained to manage the event.
• Contact local fire and police agencies to determine if the event site meets all public safety requirements, and ensure that all permits and licenses are obtained and that local emergency services, including the local police, fire department and hospital, are aware of the event.
• Designate a worker to contact local emergency responders if necessary.
• Designate a store manager to make key decisions as needed during the event.
• Provide legible and visible signs that describe entrance and exit locations, store opening times, and other important information such as the location of major sale items and restrooms.
• Prepare an emergency plan that addresses potential dangers facing workers, including overcrowding, crowd crushing, being struck by the crowd, violent acts and fire. Share emergency plan with all local public safety agencies.
• Train workers in crowd management procedures and the emergency plan. Provide them with an opportunity to practice the special event plan. Include local public safety agencies if appropriate.

Pre-event set-up

• Set up barricades or rope lines for crowd management well in advance of customers arriving at the store.
• Make sure that barricades are set up so that the customers' line does not start right at the entrance to the store. This will allow for orderly crowd management entry and make it possible to divide crowds into small groups for the purpose of controlling entrance.
• Ensure that barricade lines have an adequate number of breaks and turns at regular intervals to reduce the risk of customers pushing from the rear and possibly crushing others, including workers.
• Designate workers to explain approach and entrance procedures to the arriving public, and direct them to lines or entrances.
• Make sure that outside personnel have radios or some other way to communicate with personnel inside the store and emergency responders.
• Consider using mechanisms such as numbered wristbands or tickets to provide the earlier arriving customers with first access to sale items.
• Consider using Internet lottery for "hot" items.
• Locate sale items in different parts of the store to prevent overcrowding in one place.
• Locate shopping carts and other potential obstacles or projectiles inside the store and away from the entrance, not in the parking lot.
• If appropriate, provide public amenities including toilets, washbasins, water and shelter.
• Communicate updated information to customers waiting in line. Have signs and distribute pamphlets showing the location of entrances and exits, store opening times and location of special sales items within the store.
• Shortly before opening, remind waiting crowds of the entrance process (i.e., limiting entry to small groups, redemption of numbered tickets, etc.).

During the event

• Provide a separate store entrance for staff. Provide door monitors there to prevent crowd entry.
• Make sure that all employees and crowd control personnel are aware that the doors are about to open.
• Staff entrances with uniformed guards, police or other authorized personnel.
• Use a public address system or bullhorns to manage the entering crowd and to communicate information or problems.
• Position security or crowd managers to the sides of entering (or exiting) public, not in the center of their path.
• Provide crowd and entry management measures at all entrances, including the ones not being used. If possible, use more than one entrance.
• When the store reaches maximum occupancy, do not allow additional customers to enter until the occupancy level drops.
• Provide a safe entrance for people with disabilities.

Emergencies

• Do not restrict egress, and do not block or lock exit doors.
• Know in advance who to call for emergency medical response.
• Keep first-aid kits and Automated External Defibrillators (AEDs) available, and have personnel trained in using AEDs and CPR onsite.
• Instruct employees, in the event of an emergency, to follow instructions from authorized first responders, regardless of company rules.

By following the OSHA guidance, retail employers can ensure that they and their employees have a profitable – and safe – holiday season.

NOTEWORTHY NUMBERS

SOURCE: From National Retail Federation, October 2016. "Holiday shopping" occurs in months of November and December. Sales numbers do not include automobile, gas, or restaurant sales. Projected hiring for 2016 is actually a range of 640,000 to 690,000.

RETAILER'S RECAP

“None of the above”? Election Day is almost here. In the short time you have left, you will definitely want to download our 2016 Employer’s Guide to Employee Voting Rights, and review this comparison of Hillary Clinton’s and Donald Trump’s positions on employment law issues. It’s all guaranteed non-partisan, and not a spot of mud is slung. Also, here is a guide to keeping your employees from each others’ throats . . . within the constraints imposed by our National Labor Relations Board.

Black Friday ain’t the only thing coming right after Thanksgiving. December 1 is D-Day for the white-collar exemptions to the overtime provisions of the Fair Labor Standards Act. Jim Coleman, co-chair of our Wage and Hour Practice Group, had an excellent analysis of the impact of the new rule on retail employers in our last edition of Retailer. Here it is again in case you missed it – or just want to read it again. And for a much more detailed overview of all the changes that will take effect on December 1, read Ellen Kearns, our Wage and Hour group co-chair. Finally, we have a few updates – an FLSA overtime “before and after,” and an interview with Jim and Ellen about the lawsuits and legislation that seek to block the rule from taking effect (and why Jim and Ellen think employers need to be ready anyway).

EEO-1 reports will require compensation information. The Equal Employment Opportunity Commission is going forward with plans to require comp information on EEO-1 reports for all employers with 100 or more employees (not just federal contractors!) starting in 2017-18. The Retail Industry Leaders Association has spoken out against the plan. Here are the specifics, from Don Prophete and Robin Shea.

Do you need to market your business differently to women? On FOCUS, our women’s leadership blog, Mallory Schneider Ricci takes a good, thoughtful look at this topic, which retailers will find especially relevant.

We hope you’ve been reading our monthly bulletins coming from the Franchise Industry Group. If not, you are missing out, so check out these three: “Is your brand manager creating a ‘joint employment relationship’ with your franchisees’ employees?” and “What to make of the Wage and Hour Division’s voluntary compliance agreement with the Subway franchise system,” both by Jeff Rosin. You also will not want to miss this analysis by Don Prophete and Jeff of the decision by the U.S. Court of Appeals for the Third Circuit allowing a class of franchisees to sue Jani-King, claiming they’re actually misclassified “employees.”

Is “ban the box” resulting in fewer job opportunities for certain minority applicants? Cara Crotty, chair of our Affirmative Action Practice Group, discusses a study indicating that “ban the box” laws may be doing the opposite of what they were intended to do.

Shoddy harassment investigation comes back to bite employer. Maybe a supervisor has been accused of harassment, and you want to investigate without riling up all of the employees. Is it a good idea to pull your punches? After all, he’s innocent until proven guilty, right? Right, but that doesn’t mean you don’t do a thorough investigation anyway.

Must-reads for retailers who are also federal contractors. Cara Crotty has a comprehensive analysis of the final rule on Fair Pay and Safe Workplaces, which will require many federal contractors and subcontractors to report their “labor law violations” to the federal government -- so that the government can decide whether to debar them. And here is Cara’s analysis of the Final Rule on the paid sick leave requirement for certain federal contractors.

Yay! Constangy rated best for women and minority lawyers! As Heather Owen reported here and here, our firm has continued to rack up the honors as one of the best places in the United States for women and minority lawyers to work. In June, we were rated No. 4 in the nation for women lawyers by the National Law Journal. And Law360 rated us in the top 10 in the nation for African-American attorneys, in the top 25 for women partners, and the top 100 in the nation for women attorneys and minority attorneys. Then, in August, vault.com rated us No. 1 in the nation for women attorneys and No. 1 in the nation for minority attorneys. We are going to get a swelled head.