The Federal Trade Commission (“FTC”) and the Department of Justice Antitrust Division (“DOJ”) just announced that they will host a virtual workshop on December 6 and 7, 2021, to discuss the agencies’ efforts to promote competition in labor markets and worker mobility.
The workshop, “Making Competition Work: Promoting Competition in Labor Markets,” will feature lawyers, academics, policy experts, labor groups, and workers and consist of a series of panels, presentations, and remarks addressing competition issues affecting labor markets and workers. The workshop will be held virtually on the FTC’s website, with the agenda to be made available in the future.
Topics will include labor monopsony, use of non-compete and non-disclosure agreements in labor agreements, information sharing and benchmarking activity among competing employers, the role of other federal agencies in ensuring fair competition in labor agreements, and the relationship between antitrust law and collective bargaining efforts in the “gig economy.”
The workshop is another initiative by the antitrust enforcers signaling their focus on competition in the labor markets. In April 2020, the agencies jointly released a statement affirming the importance of competition for U.S. workers and acknowledging that cooperation between government, business, and individual actors may be necessary to protect workers’ welfare. The agencies noted that they are focused on identifying collusive or anticompetitive conduct that may harm workers, including agreements to suppress or eliminate competition with respect to compensation, benefits, hours worked, and the hiring, soliciting, recruiting, and retention of workers.
The enforcers are not just making “noise”—the DOJ has been actively prosecuting antitrust cases focused on anticompetitive conduct in the labor market, including filing their first criminal indictments for such conduct:
- In December 2020: the DOJ filed its first criminal wage-fixing case, alleging a conspiracy by a staffing company to fix prices by lowering the wages paid to workers.1
- In January 2021, the DOJ filed its first criminal non-solicitation (no-poach) case, alleging a price-fixing conspiracy by medical care center operators for allegedly agreeing with competitors to forego soliciting each other’s’ senior-level employees.2
- In March 2021, the DOJ filed its third criminal antitrust case focused on anticompetitive conduct in the labor market, charging a healthcare staffing company and its former manager for allegedly agreeing with competitors not to solicit or hire each other’s contract nurses and to fix wages for those nurses.3
We expect the pace of this activity to only pick up.
In July 2021, President Biden issued an Executive Order to promote competition in the American economy, through which he encouraged the antitrust agencies to focus enforcement efforts on several markets, including the labor markets. The Executive Order noted that competition in labor markets has been stifled with non-compete clauses, occupational licensing requirements, and policies allowing third parties to make wage data available to employers without triggering antitrust scrutiny. President Biden specifically encouraged the FTC to ban or limit non-compete agreements, ban unnecessary occupational licensing restrictions, and to strengthen antitrust guidance to prevent employers from collaborating to suppress wages or reduce benefits by sharing such information with one another.
Most recently in September 2021, FTC Chair Lina Khan wrote a letter to the House Judiciary Committee’s antitrust subcommittee discussing the FTC’s focus on labor markets. Chair Khan noted that she had instructed staff to investigate unlawful mergers or conduct that harm workers, an area that she characterized antitrust law to have “in recent decades generally  neglected.” Chair Khan also urged Congress to consider passing legislation to provide greater protections under the antitrust laws to “gig economy” workers, the majority of whom are non-employees. Currently, employees’ labor organizing is exempted from antitrust liability under the federal antitrust statutes, but non-employee workers engaged in collective actions do not receive the same exemption. Chair Khan noted that legislation clarifying that labor organizing by non-employee workers is outside the scope of the federal antitrust statutes would remove the threat of antitrust liability.
The agencies’ recent actions emphasize their renewed focus on competition in the labor markets, and companies, employers, and practitioners should tune in to the workshop for guidance and insight into how the agencies plan to apply antitrust law to promote competition in those markets. Mintz attorneys will be monitoring and reporting on the workshop.
Should you have any questions about this, or any other antitrust or competition law question, please feel free to contact the attorneys listed above or your Mintz attorney.
1 Indictment, United States of America v. Jindal, No. 4:20-cr-358 (E.D. Tex. Dec. 9, 2020), ECF No. 1.
2 Indictment, United States of America v. Surgical Care Affiliates, LLC, No. 3-21-cr-0011-L (N.D. Tex. Jan. 5, 2021), ECF No. 1.
3 Indictment, United States v. Hee, Case No. 2:21-cr-00098 (D. Nev. Mar. 26, 2021), ECF No. 1.