New Mexico Petroleum Marketers Seek To Overturn Workplace Violence Standard

In January 2002, Elizabeth Garcia, age 26 and a mother of three was abducted from Allsup's store in Hobbs, NM, raped and murdered. Garcia had been working alone at night, her first night on the job. The store was not equipped with a security camera. From 1998 through April 2003, a study found there had been 16 murders, 24 rapes, 37 kidnappings and tens of thousands of other crimes reported at convenience stores in New Mexico.

Correctly determining that multiple rapes, murders and kidnappings on the job was a workplace safety hazard, the New Mexico state Environmental Improvement Board, which issues occupational safety and health standards, issued a regulation last February that requires convenience stores open between the hours of 11 p.m. and 5 a.m. either to have two workers on duty, or one clerk and a security guard, or to install bulletproof glass or other safety features to limit access to store employees. The regulation also requires safety cameras, panic alarms and adequate lighting, and making sure that clerks have a clear line of sight outside the stores. They also require either time-lock safes or some sort of money-drop and limit cash in the register to $50. Employees must receive crime prevention and safety training by the employer or a "knowledgable representative" in a language that is understood by the employee.

Now the New Mexico Petroleum Marketers Association has filed a suit to have the regulation overturned. The state is not backing down:

State Environment Secretary Ron Curry said Wednesday, "Our worker-safety regulations are well-grounded and well within the state's powers to promulgate."

"These safety regulations have been in place for seven months now, and the industry has reported that their stores have already made the necessary upgrades to comply," Curry said. "We are very disappointed that some in the industry are continuing to fight these important, life-saving guidelines."

According to the Bureau of National Affairs (no link), the Petroleum Marketers Association argues that

New Mexico's Occupational Health and Safety Act does not grant the board the authority to adopt regulations to protect convenience store workers and patrons from third-party criminal actions. The appeal contends that the regulations at issue are, therefore, invalid.

In adopting the act, the appeal states, the New Mexico Legislature sought to regulate hazardous materials and processes in the workplace, not to enact a crime-prevention measure.

This takes health and safety practice back about twenty years. I remember in the mid-1980's bringing up the bizarre idea of an OSHA bloodborne pathogens standard and being told that the OSHAct was only intended to deal with machines and chemicals and that kind of stuff. It wasn't until the mid 1990's that we convinced federal OSHA that because workplace violence injured and killed so many workers, and because there were recognized and feasible means to prevent much of the violence, it was an issue that OSHA had to address. In fact, in 1998, OSHA issued Guidelines for Late Night Retail Workers.

Admittedly, federal OSHA isn't knocking itself out enforcing against employers who put their employees into situations where they are vulnerable to violence, but claiming that workplace violence is not an issue that OSHA was intended to address is, well, so last-century.