On July 9, 2021, President Biden issued the Executive Order on Promoting Competition in the American Economy (the “Order”). This sweeping Order affirms that it is the policy of the President’s Administration to enforce the antitrust laws to combat concentration and abuses of economic power in a number of markets, including: labor, agriculture, healthcare (including i.e., hospitals, insurance, hearing aids and prescription drugs), repair, real estate brokerage, alcoholic beverage distribution, cable, internet, air travel, financial services, rail transport, and ocean shipping. This Order, among other things, mandates and/or encourages cabinet members and agency officials, including Federal Trade Commission (FTC) officials, to conduct studies, issue reports, and consider rulemaking to ramp up enforcement of antitrust and related laws in these sectors of the American economy. The Order also reaffirms the authority of the Department of Justice (DOJ) and FTC to challenge previously consummated mergers in all industries, including those that received clearance under the Hart-Scott-Rodino Act, and to review, and likely strengthen, the Horizontal and Vertical Merger Guidelines.
Employers Beware: COVID-19 Will Not Excuse Wage or Labor Fixing Agreements
The United States Department of Justice (DOJ) and the Federal Trade Commission (FTC) have made it clear that they will act to protect employees on the front lines of the battle against COVID-19. On the one hand, as we explained in a prior client alert, they previously announced pre-clearance procedures and other guidelines intended to make it easier for companies to collaborate in legitimate, pro-competitive ways. In their latest announcement, the DOJ and FTC warned that they would not hesitate to protect all employees from companies that use COVID-19 as an excuse to collude in fixing wages, benefits, hours worked, or other aspects of employment. Given the government’s prior focus on antitrust issues in the labor market, including their prior indication that they will pursue criminal remedies where appropriate, employers must be more careful than ever to ensure that they do not run afoul of antitrust laws in this area.
Continue Reading Employers Beware: COVID-19 Will Not Excuse Wage or Labor Fixing Agreements