The Federal Trade Commission (FTC) and U.S. Department of Justice (DOJ) mean business when it comes to antitrust violations! During his 2020 presidential campaign, President Biden said: “It’s simple: companies should have to compete for workers just like they compete for customers. We should get rid of noncompete clauses and no-poaching agreements that do nothing but suppress wages.” Then, in July of 2020, President Biden issued an Executive Order which, among other provisions, urged the FTC to regulate noncompete agreements. There has also been plenty of enforcement action.
Four home health managers at several agencies in Maine, for example, were recently indicted by a federal grand jury on felony charges related to antitrust violations. The providers agreed among themselves to pay personal care workers between $15 and $16 per hour, pressured other home health agencies to do the same, and threatened to report other managers to Maine’s Medicaid Program if they didn’t comply. According to the indictment, they conspired to suppress wages and limit job mobility by agreeing to fix workers’ rates of pay and to refrain from hiring workers from each other’s companies. They allegedly conspired to deprive workers of opportunities to earn better wages.
In United States v. DaVita, Inc. [No. 1:21-cr-00229-RBJ (D. Colo. Jan. 28, 2022)], the government claimed that outpatient medical facilities agreed not to solicit each other’s senior-level employees. The Judge in this case refused to grant DaVita’s motion to dismiss on the basis that non-solicitation and no-hire agreements are unlawful when they are used as a basis for a naked agreement to allocate markets.
What should providers do? In 2016, the FTC and the DOJ jointly issued “Antitrust Guidance for HR Professionals.” This Guidance includes “red flags” for human resource managers. Human resource managers and their colleagues should not:
It’s a new environment for anti-trust enforcement, especially in the healthcare industry. Providers should pay close attention to this issue.
©2022 Elizabeth E. Hogue, Esq. All rights reserved.
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