Antitrust in Labor Markets

Authors:  Ruth Glaeser and Steven Cernak

In her first major speech since taking the helm of the Justice Department’s Antitrust Division, Assistant Attorney General Gail Slater spotlighted a growing concern: the power imbalance in America’s labor markets. Speaking in late April, Slater emphasized that antitrust laws are not solely designed to protect consumers from monopolistic practices, but are also a critical tool for protecting workers, promoting wage growth, and ensuring fair working conditions through competitive labor markets.

Despite being historically overshadowed by consumer-facing antitrust actions, labor markets have always been integral to antitrust protection. Workers, like consumers, are deeply affected by competition—or the lack thereof. When companies conspire to fix wages or agree not to hire one another’s employees, workers are deprived of fair market opportunities. Antitrust law is fundamentally about maintaining competitive markets, including labor markets.

The DOJ’s Wins and Losses

In response to increasing concern over anti-competitive labor practices, attention to competition in labor markets re-emerged around 2016, when the DOJ and FTC released their Antitrust Guidance for Human Resource (HR) Professionals. Further, the agencies publicly announced they would begin criminally prosecuting certain no-poach and wage-fixing agreements between and among employers.

DOJ achieved a notable milestone in April 2025 when it secured its first-ever guilty verdict in a criminal labor-market antitrust case. In United States v. Eduardo Lopez, a federal jury convicted a former executive of a home healthcare staffing agency for conspiring with others to suppress wages paid to healthcare workers in the Las Vegas area. This verdict represents a landmark victory for the DOJ.

But this singular success comes after several setbacks, signaling that the legal framework around antitrust enforcement in labor markets remains contested.

For example, in United States v. Jindal, the DOJ’s first-ever wage-fixing criminal prosecution, a former healthcare staffing company owner and the company’s ex-clinical director were accused of conspiring with a competitor to lower wages for physical therapists and their assistants. Despite the gravity of the allegations, both defendants were acquitted of all charges.

United States v. Davita, Inc. involved the DOJ’s first no-poach agreement prosecution. In that case, Davita Inc. and its former CEO were charged with conspiring with other companies to restrict competition in the market for dialysis-center employees by implementing “no-poach” agreements, which allegedly prohibited companies from hiring each other’s employees. Both Davita and its CEO were acquitted on all charges.

In United States v. Manahe, four business managers of home health agencies faced charges for conspiring to form no-poach agreements and fix wages for home health aides. The defense successfully argued that the agreements had pro-competitive justifications and did not constitute “naked” restraints on trade, which are per se illegal under antitrust law. The defendants were ultimately acquitted, further complicating the DOJ’s efforts to define and enforce labor-based antitrust violations.

These mixed outcomes reveal the complexity of proving criminal liability in labor market antitrust cases.

Updated FTC and DOJ Antitrust Guides

In January 2025, the two agencies updated and replaced the earlier 2016 Guidelines. The 2025 update expanded their scope and emphasized that antitrust law applies to all business activities, not just to those directly affecting consumers. This shift further validated the idea that workers must be considered stakeholders in competitive markets who deserve the protection of the antitrust laws.

HR And Worker Responsibilities Under Antitrust Law

Both HR professionals and workers play a vital role in protecting themselves and the companies they work for from criminal antitrust violations. The 2025 Guidelines from the DOJ identify several types of activities and agreements that may constitute antitrust violations, including:

1. Agreements not to hire or recruit workers;
2. No-poach agreements, especially among franchisors and franchisees who agree not to hire or recruit each other’s workers;
3. Sharing paying and hiring information with competitors, especially with companies that compete for the same workers, including through outside consultants;
4. Employment agreements that limit a worker’s ability to change jobs, like non-compete clauses or rules, rules that penalize workers for quitting, or limits on starting a new business; and
5. Contracts that include very strict non-disclosure rules or require workers to repay training costs in unfair ways that might make it harder for people to leave their jobs or find new ones.

Organized Labor

Both the 2016 and 2025 guidance papers concerned employees outside of collective bargaining situations involving unions. For organized labor, antitrust law has two related “exemptions.” Through multiple laws, Congress created the “statutory labor exemption” to allow employees to join together in unions for certain activities, including most aspects of collective bargaining. In interpreting those laws, courts created the “nonstatutory labor exemption” to allow certain employers to work together opposite the union regarding certain subjects of collective bargaining. So, those two exemptions do not apply to the situations discussed in this post and the recent guidance from the agencies.

Conclusion

The DOJ’s increased focus on labor markets as part of antitrust enforcement marks a pivotal development. Further, the DOJ’s first criminal conviction in a labor antitrust case is a clear sign that enforcement is evolving. While courts have yet to fully embrace this expanded interpretation of antitrust law, the ongoing cases and updated guidelines lay the groundwork for future legal clarity. For employers, HR professionals, and workers alike, the message is clear: competition law does not end at the consumer—it extends into every workplace in America.

Image by Richard Duijnstee from Pixabay