While this period of crisis due to the pandemic has led competitors to cooperate, the crisis does not serve as an excuse for anticompetitve conduct. The Department of Justice Antitrust Division (the “Antitrust Division”) and the Federal Trade Commission (the “FTC” and with the Antitrust Division, the “Agencies”) have issued a warning to the healthcare industry that, while combatting the COVID-19 crisis may require unprecedented cooperation among competitors, the crisis cannot excuse conduct that causes anticompetitive harm to workers, including doctors, nurses and other first responders.
As set forth in an April 13 announcement, the Antitrust Division and the FTC recognize that many individuals and businesses “have demonstrated extraordinary compassion and flexibility in responding to COVID-19.” However, they cautioned that others “may use it as an opportunity to prey on American workers by subverting competition in labor markets.” Accordingly, the Agencies stated that they intend to be “on alert” for practices that cause harm in employment markets, including agreements to lower wages or reduce salaries or hours worked by healthcare industry employees. In addition, the Agencies also explained that “naked” wage-fixing and “no-poach” agreements will be prosecuted criminally, and that even mere “invitations to collude” on these subjects may be pursued civilly. To assist the Agencies in identifying potentially unlawful conduct, they have requested that anyone with information about any efforts to cause harm to competition in labor markets email the Antitrust Division’s Citizen Complaint Center at firstname.lastname@example.org and the FTC’s complaint center at email@example.com.
A copy of the Agencies’ announcement can be found here.