Biden’s Pick for Top Antitrust Enforcer is Likely to Continue DOJ’s Increasing Focus on Labor Markets
President Biden’s nominee for his administration’s top antitrust enforcer appears likely to continue the trend of increased enforcement efforts in labor markets.
At his Senate confirmation hearing on October 6, 2021, Jonathan Kanter testified that, “If the antitrust laws are not working to protect competition to the benefit of workers, then the antitrust laws are not working.” Kanter is President Biden’s pick to be the next Assistant Attorney General for the Antitrust Division at the U.S. Department of Justice (“DOJ”) and his testimony reflects the Biden administration’s focus on labor market collusion as an antitrust enforcement priority.
Anticompetitive conduct in the labor market primarily includes wage-fixing—when competitors agree on wages—and no-poaching agreements—when competitors agree not to solicit each other’s employees. These agreements insulate employers from competition, enabling them to pay workers less than the value their labor provides the firm, and denying workers the opportunity to seek employment with better compensation or work conditions.
President Biden identified labor markets as an area to be targeted by antitrust enforcement in his July 9, 2021, Executive Order on Promoting Competition in the American Economy, stating that “[c]onsolidation has increased the power of corporate employers, making it harder for workers to bargain for higher wages and better work conditions.” President Biden directed the Attorney General and the Chair of the FTC to consider revising the 2016 Antitrust Guidance for Human Resource Professionals, which announced the DOJ’s intention to criminally prosecute naked wage-fixing and no-poaching agreements.
The first such criminal prosecution came to fruition in December 2020, when the Antitrust Division announced the indictment of Neeraj Jindal, a former owner of a health care staffing company, for conspiring to fix prices by paying lower rates to physical therapists and physical therapist assistants. A second criminal indictment came in January 2021, accusing Surgical Care Affiliates LLC of entering into two bilateral agreements not to solicit the senior-level employees of a competitor. Since then, Biden’s DOJ has brought additional charges in the Jindal case and two more cases alleging wage-fixing and no-poaching agreements.
The acting head of the Antitrust Division, Richard Powers, focused on labor markets as one of two antitrust priorities at a conference on October 1, 2021. In addition to the ongoing criminal prosecutions, Powers discussed the Division’s civil enforcement and competition advocacy efforts, which include civil challenges to anticompetitive non-compete agreements, public education efforts, and the filing of amicus briefs and statements of interest in labor competition cases.
Powers also discussed the incorporation of provisions regarding labor market competition in corporate criminal resolutions, where such provisions can be part of the remedy for harms caused by other anticompetitive conduct. As an example, he cited a Deferred Prosecution Agreement (DPA) in a case involving a conspiracy to allocate medical and radiation oncology treatments for cancer patients. The DPA included a term prohibiting Florida Cancer Specialists from enforcing its non-compete clauses for four years.
Although Kanter is widely known for his criticism of the Big Tech companies, his nomination hearing testimony demonstrates that his views are also in line with the administration’s focus on labor markets as a target of antitrust enforcement. He identified competition for workers as a “critical mission” of antitrust law and stated that he is “eager… to ensure [the DOJ has] a vigorous and comprehensive antitrust program that protects workers from anticompetitive abuses.” Employers can expect Kanter and the Biden administration to continue to prioritize the labor market in their antitrust enforcement efforts.
Written by Janice Johnson
Edited by Gary J. Malone
Tagged in: Antitrust Enforcement,