On April 13, 2020, the Federal Trade Commission (FTC) and Department of Justice’s (DOJ) Antitrust Division issued a Joint Antitrust Statement Regarding COVID-19 and Competition in Labor Markets (Statement). In the Statement, the FTC and DOJ remind employers that “COVID-19 does not provide a reason to tolerate anticompetitive conduct that harms … essential service providers on the front lines of addressing the crisis.”
The FTC and DOJ note that they are “on alert” for employers who are engaging in “collusion or other anticompetitive conduct in labor markets, such as agreements to lower wages or to reduce salaries for hours worked.” The Statement warns that the DOJ may criminally prosecute employers and individuals who enter into wage-fixing and no-poach agreements and may pursue civil enforcement actions against those who invite others to collude in anticompetitive conduct. The Statement also warns that employers involved in “hiring, recruiting, retention, or placement of workers should be aware that anticompetitive conduct runs the risk of civil and/ or criminal liability. “
The Statement is a timely, significant reminder for schools dealing with the innumerable challenges related to employees, students, and business operations that COVID-19 is generating. As the Statement indicates, schools may implicate antitrust issues through discussions with other schools about employee related matters, e.g., reducing or modifying wages, benefits, or hours, or agreeing not to “poach” employees. However, schools may also implicate antitrust issues through discussions with other schools about student related financial matters, e.g., collaborating on whether to provide refunds, to lower or maintain tuition and fee amounts, or to reduce financial aid offered. Schools with specific questions about antitrust issues should consult with legal counsel.
The Statement is available here.