The FTC's lawsuit against Facebook is dominating the antitrust news cycle but yesterday the Antitrust Division announced something potentially more important -- an indictment against the former owner of a health care staffing company for agreeing with competitors on what they would pay physical therapists. The government also added a charge for obstructing an FTC investigation of the same underlying conduct.
The antitrust community has been anticipating this news for at least four years. Careful observers have noticed the Antitrust Division's web page (justice.gov/atr), normally focused on announcements from the past few weeks, has a link to "Antitrust Red Flags for Employment Practices" which has been up on the site since October 2016. Senior government officials have given speeches emphasizing the importance of competition in labor markets, and the FTC/DOJ Guidance for HR Professionals, released at the same time as the "Red Flags" document, announced the Division's intention to charge a criminal violation under the right circumstances.
The health care industry should pay particular attention and check their compliance programs to ensure proper training for those making hiring and salary decisions for their staff. A few years ago we saw civil lawsuits alleging anticompetitive agreements to suppress nurses' wages but those flew under the radar. Now that similar conduct is being charged as a crime it's time once again to focus on labor market antitrust issues.
“The charges announced today are an important step in rooting out and deterring employer collusion that cheats American workers — especially health care workers — of free market opportunities and compensation,” said Assistant Attorney General Makan Delrahim of the Department of Justice’s Antitrust Division. “Employers who conspire to fix the wages of workers or restrict their mobility by allocating labor markets will be prosecuted to the fullest extent of the law. The division will also continue to prosecute those who undermine the integrity of federal investigations, including proceedings before other federal agencies.”