COVID-19: Another Warning from the U.S. Antitrust Agencies – Anticompetitive Conduct in Labor Markets Risks Criminal and/or Civil Liability
by Lauren Norris Donahue, Sang-yul Lee, Erinn L. Rigney, Brian J. Smith
The U.S. Department of Justice Antitrust Division (“Division”) and the Federal Trade Commission (“FTC”) (collectively, the “Agencies”) issued a joint statement on April 13, 2020, warning employers, staffing companies, and recruiters against anticompetitive conduct disadvantaging workers during the COVID-19 crisis (“Joint Statement”). While acknowledging the need for cooperation between the government, private businesses, and individuals in order to address the spread of COVID-19, the Agencies announced that they “are on alert for employers, staffing companies (including medical travel and locum agencies), and recruiters, among others, who engage in collusion or other anticompetitive conduct in labor markets, such as agreements to lower wages or to reduce salaries or hours worked.” Accordingly, companies and individuals involved in the hiring, recruitment, or retention of workers — particularly doctors, nurses, first responders, and those who work in grocery stores, pharmacies, warehouses, and for other essential businesses and service providers on the front lines of the current crisis — should ensure compliance with the antitrust laws to avoid criminal and/or civil liability.
What do companies need to know? Below, we:
- review the types of labor market conduct that risks running afoul of the antitrust laws;
- summarize the key points from the Agencies’ Joint Statement; and
- provide practice tips for mitigating antitrust risk and avoiding the significant consequences that can result from antitrust investigations, enforcement proceedings, and civil litigation.