Perhaps flying under the radar of everyone except antitrust lawyers (and the employers who have been targeted), the Department of Justice (DOJ) has made a concerted push recently to use federal anti-trust laws as a tool to bolster workers’ rights, even going so far as to prosecute employers for alleged anticompetitive practices in labor markets. In March the DOJ’s Antitrust Division and the Labor Department signed a memorandum of understanding “to strengthen the partnership between the two agencies to protect workers from employer collusion, ensure compliance with the labor laws and promote competitive labor markets and worker mobility.”
The Sherman Act, a federal antitrust law, is most commonly used to prevent anticompetitive activity that affects consumers such as monopolies, price fixing, and collusion amongst competitors. In the labor and employment context, the DOJ uses the Sherman Act to combat efforts to fix wages or limit worker mobility.
The DOJ pursuing wage-fixing cases as civil violations of the Sherman Act is nothing new, indeed it is an everyday occurrence. Over the last decade, the DOJ’s Antitrust Division has investigated several tech companies for their “no-poach agreements,” alleging they constitute unlawful agreements not to hire each other’s employees. Fast food franchises have been similarly targeted for their non-compete agreements. However, DOJ’s recent push is to criminally prosecute employers for violations of antitrust law.
Perhaps a ray of light...
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