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The Department of Justice (DOJ) held a public workshop on September 23, 2019, to discuss the role of antitrust labor markets and promoting robust competition for the American worker. The workshop was the first in a two-part series hosted together with the U.S. Federal Trade Commission. The workshop covered a variety of labor competition issues, including, among other topics:
- Anticompetitive no-poach and wage-fixing agreements
- Approaches to labor market definition
- The role of employer collaboration and contractual arrangements between employers on competition for workers
- Labor monopsony in merger enforcement
- Antitrust exemptions for union activity and collective bargaining
Panelists discussed recent developments in the law, economic research, and policy proposals, as well as how to effectively develop cases challenging labor monopsony.
Assistant Attorney General for Antitrust Makan Delrahim opened the workshop, which brought together economists, attorneys, labor representatives, and industry experts who examine competition in labor markets and who have experience litigating or studying labor antitrust cases.
The Division intends to explore the practical considerations that antitrust enforcers and private litigants face in bringing cases that involve labor markets. The workshop began with an overview of the status of labor economics, followed by a series of panels examining:
- Approaches to defining labor markets
- Antitrust analysis of labor restraints arising out of competitor collaborations and contractual partnerships between employers
- Statutory and nonstatutory antitrust exemptions for labor union activities
The second day of the workshop will be hosted by the Federal Trade Commission and will focus on the legal, economic, and consumer protection issues associated with the use of noncompete clauses in employment contracts. The workshop will examine the current state of economic research on the effects of noncompete clauses, and whether additional research would allow the agencies to better understand the short-term and long-term micro and macro effects of such clauses. The Federal Trade Commission will announce the date and agenda for the second workshop.
August 8, 2019
September 20, 2019
September 23, 2019
Date and Location
September 23, 2019
DOJ Conference Center
Makan Delrahim, Assistant Attorney General for Antitrust
Ioana Marinescu, Assistant Professor, School of Social Policy & Practice, University of Pennsylvania
Elena Prager, Assistant Professor of Strategy, Kellogg School of Management, Northwestern University
Panel 1: Approaching Labor Market Definition
Panelists will discuss how labor markets should be defined in antitrust analysis and the appropriate tools, methods, and categories of information required for such analysis. The panel also will discuss market definition in merger and non-merger cases, and when antitrust enforcers should investigate labor monopsony theories in merger reviews.
Orley Ashenfelter, Joseph Douglas Green 1895 Professor of Economics, Princeton University
Patrick Greenlee, Economist, Antitrust Division, United States Department of Justice
Dean Harvey, Lieff Cabraser Heimann & Bernstein, LLP
Kevin Murphy, George J. Stigler Distinguished Service Professor of Economics, Booth School of Business, University of Chicago
DOJ Moderator: Ronald Drennan, Acting Economics Director of Enforcement
Afternoon Presentation: Ramogi Huma, Executive Director, National College Players Association
Panel 2: Ancillarity, Collaborations, and Contractual Arrangements: Assessing Antitrust Harms in Complex Business Settings
Restraints on worker mobility are not always purely horizontal or purely vertical, and they sometimes arise in complex business settings, including a variety of collaborations, that blur the lines between interbrand and intrabrand competition. The panel will explore recent developments in the case law and economic literature and discuss how antitrust enforcers should assess restraints on worker mobility, including restraints that arise within franchise systems and for workers in the “gig” economy.
Rachel Brass, Gibson, Dunn & Crutcher LLP
Darrell Johnson, CEO, FranDATA
Rahul Rao, Assistant Attorney General, Washington State Attorney General
Marshall Steinbaum, Assistant Professor, Department of Economics, University of Utah
Randy Stutz, Vice President of Legal Advocacy, American Antitrust Institute
Samuel Weglein, Managing Principal, Analysis Group, Inc.
DOJ Moderator: Doha Mekki, Counsel to the Assistant Attorney General
DOJ Moderator: Karina Lubell, Attorney Advisor, Competition Policy & Advocacy Section
Panel 3: Labor Unions and Collective Bargaining
The panel will address the latest developments in case law and public policy regarding statutory and non-statutory labor exemptions from the antitrust laws for collective bargaining and other union activity. Panelists also will discuss how the evolving status and classification of workers, including workers in the digital economy, dovetails with these labor exemptions.
Jonathan Berry, Principal Deputy Assistant Secretary for Policy, U.S. Department of Labor
W. Stephen Cannon, Constantine Cannon LLP
Matthew Ginsburg, Associate General Counsel, AFL-CIO
Jeffrey Kessler, Winston & Strawn LLP
Derek Ludwin, Covington & Burling LLP
Sanjukta Paul, Assistant Professor of Law, Wayne State University
DOJ Moderator: William Rinner, Chief of Staff and Senior Counsel to the Assistant Attorney General
Ronald Drennan, Acting Economics Director of Enforcement, Antitrust Division, United States Department of Justice
Public Comment Submissions
The Department of Justice invited comments from the public on the topics covered by this workshop. The deadline for submitting comments was October 23, 2019. The comment period is now closed.
- American Antitrust Institute
- Commissioner Rohit Chopra, Federal Trade Commission
- Timothy F. Haley, Seyfarth Shaw LLP
- Open Markets Institute and the Service Employees International Union
- Sanjukta Paul, Wayne State University and Marshall Steinbaum, University of Utah
- Gary W. Vollan, Wyoming State Denturist Association
Privacy and confidentiality: Written submissions and the identity of the submitter may be disclosed, reproduced, and distributed by publication and/or posting on the Department of Justice website, at the discretion of the Department of Justice. Information that is submitted in connection with this event cannot be maintained as confidential by the Department of Justice. Written submissions should not include any information that the submitting person seeks to preserve as private or confidential.