Paul Greenberg

It's quite a role reversal: The feds are complaining about getting dragged into court, having to file time-consuming paperwork, and generally being treated like any taxpayer who get crosswise with the IRS.

It seems Wal-Mart, the 800-pound gorilla of retailers, is challenging a fine in connection with the death of a clerk at one of its stores on Long Island, who was trampled to death the day after Thanksgiving of 2008. The poor guy was overrun by a crowd -- or rather mob -- rushing into the store for the biggest shopping day of the year.

As a result, Wal-Mart was fined $7,000 by OSHA, the federal job-safety agency. The company also settled a case with local prosecutors, and has taken all kinds of precautions on its own to assure that such a thing never happens again, adopting new crowd-control standards for all its outlets in this country. (Once again, hindsight has proven 20-20.)

Wal-Mart has also done something else, and that's what's got the feds riled. At last estimate, Wal-Mart had spent more than a million dollars fighting this relatively modest $7,000 fine, claiming no one could have foreseen the danger at the time, and that it's being punished for violating an arbitrary standard that didn't exist at the time. Ex Post Facto is the lawyerspeak for it.

What's more, according to Wal-Mart, the citation from OSHA "has far-reaching implications for the retail industry that could subject retailers to unfairly harsh penalties and restrictions...."

What's so new about a federal agency's imposing still more rules and regs on the supposedly private economy? This: Wal-Mart has the resources to fight back. It may be the only outfit in the country with more lawyers in its employ than this branch of the Labor Department. And they stay busy. For once the feds seem to have picked on an outfit their own size, if not bigger. And OSHA doesn't like it, not at all.

The federal agency claims its precious time is being eaten up by Wal-Mart's legal maneuvers. Officials at the Department of Labor say that, over the past five months, 17 percent of the available attorney hours in its New York office have been devoted to this one little case, or the equivalent of five full-time lawyers.

Tell us about it. This kind of draining distraction may be new for OSHA, but private employers have to live with the threat of lawsuits every day.


Paul Greenberg

Pulitzer Prize-winning Paul Greenberg, one of the most respected and honored commentators in America, is the editorial page editor of the Arkansas Democrat-Gazette.