On January 28, 2022, a federal grand jury in Maine returned an indictment charging four managers of home health care agencies with participating in a conspiracy to suppress the wages and restrict the job mobility of Personal Support Specialist workers during the COVID-19 pandemic. This follows on the heels of separately issued indictments attacking similar conduct among individuals and entities operating ambulatory surgical and dialysis centers.
While the aggressive nature of these enforcement efforts may seem unprecedented, the federal antitrust enforcement agencies had foreshadowed these indictments. In October 2016, the Antitrust Division of the U.S. Department of Justice (DOJ) and the Federal Trade Commission (FTC) jointly published their Antitrust Guidance for Human Resource Professionals, making clear that protecting competition in labor markets was a top priority. Among other things, the federal antitrust agencies announced that “[g]oing forward, the DOJ intends to proceed criminally against naked wage fixing or no poach agreements [i.e., agreements not to hire a competitor’s employees].” More recently, the DOJ and FTC have collaborated on workshops addressing competition in labor markets, and now routinely look at the potential effects on labor markets of mergers and acquisitions that come to their attention through the Hart-Scott-Rodino premerger notification process.