October 26, 1998

Matthew Soltis, CIH, CSP
Corporate Health and Safety Manager
Tetra Tech NUS, Inc.
661 Anderson Drive
Pittsburgh, Pennsylvania 15220

Dear Mr. Soltis:

This letter is in response to your request for guidance concerning the status of Tetra Tech NUS as a "successor employer" of former Brown & Root employees as used in 29 C.F.R. Parts 1910.1020(c)(7) and (h), which cover access to employee exposure and medical records. For the following reasons, Tetra Tech NUS is not a successor employer for the purposes of this rule.

You have indicated that in 1997 Brown & Root, Inc. decided to discontinue business activities in the environmental area. As part of eliminating this portion of their business, Brown & Root entered into an agreement with Tetra Tech, Inc. to sell certain assets, primarily pre-existing contracts. Pursuant to the sales agreement, the parties agreed that all Brown & Root employees which supported this business would be terminated by Brown & Root and hired by Tetra Tech NUS, a newly formed, wholly owned subsidiary of Tetra Tech. Brown & Root would remain a viable company and continue operations in other areas. This transaction closed and was effective January 1, 1998. Your question concerns whether you are obligated under 29 C.F.R Part 1910.1020 to transfer from Brown & Root and subsequently retain all medical records for the employees hired by Tetra Tech, NUS as a result of this transaction and, in addition, all past Brown & Root employees who worked in its environmental business.

The doctrine of successor liability is derived from labor law principles developed in a series of Supreme Court cases decided in the 1960's and 1970's. Although this doctrine was first applied to Labor Management Relations Act cases, it has been extended by the courts to cover most other Federal labor and employment statutes, including the Occupational Safety and Health Act of 1970. Dole v. H.M.S. Direct Mail Service, Inc., 752 F. Supp. 573 (W.D.N.Y. 1990), rev'd and rem'd on different grounds, 936 F.2d 108 (2nd Cir. 1991). Although there are several factors considered by the courts when determining whether to impose successor liability, one of the key tests is whether the predecessor entity is available to provide the relief requested. See Musikiwamba v. ESSI, Inc. 760 F.2d 740. 750 (7th Cir. 1985). If the predecessor entity is available to provide relief, then no liability will be imposed on the successor employer. Rojas v. TK Communications, Inc. 87 F.3d 745, 750 (5th Cir. 1996).

Under these principles , Tetra Tech NUS is not subject to the record retention and access requirements of 29 C.F.R Part 1910.1020 with respect to former Brown & Root employees. Because Brown & Root remains a viable, functioning entity, it is their responsibility to comply with the requirements of 29 C.F.R Part 1910.1020 regarding medical records generated with respect to the employees in question before January 1, 1998. Tetra Tech NUS is, however, required to comply with 29 C.F.R Part 1910.1020 for any medical records generated with respect to Tetra Tech NUS employees after January 1, 1998.

If you have any additional questions, please do not hesitate to contact me.

Sincerely,

Robert W. Swain
Counsel for Legal Advice
Occupational Safety and Health Division