Summary

In a warning to businesses, the Antitrust Division of the U.S. Department of Justice (“DOJ”) and Federal Trade Commission (“FTC,” collectively the “Agencies”) issued a joint statement announcing their continuing vigilance against anticompetitive conduct in labor markets, as well as their continued willingness to pursue both civil and criminal actions for violations. The Agencies also indicated a particular emphasis in protecting frontline and essential workers during the pandemic.

As previously reported here, on March 24, 2020 the Agencies issued a joint statement announcing an accelerated antitrust review process for public health projects responsive to COVID-19 related requests, as well as guidance for collaborations between businesses working in response to the pandemic. On April 13, 2020, the Agencies issued a follow up joint statement, emphasizing their vigilance against anticompetitive conduct in labor markets, as well as their willingness to pursue both civil and criminal actions for violations—something that the DOJ has previously publicly stated.

While the statement recognizes that some cooperation between businesses may be necessary to ensure health and safety during the pandemic, the Agencies warn that COVID-19 does not provide justification for anticompetitive conduct such as unlawful wage-fixing, no-poach agreements, anticompetitive non-compete agreements (although there is no guidance if the Agencies are taking a new, more restrictive posture regarding such agreements), or unlawful exchanges of competitively sensitive employee information. The Agencies’ statement signals to employers, staffing companies, and recruiters that antitrust enforcers are paying particular attention to the labor market for first responders during this time (doctors, nurses, grocery store workers, pharmacy workers, delivery, distribution, warehouse, and other essential service providers) and to steer clear of collusion or other anticompetitive conduct that may harm workers.