Antitrust in labor markets is a hot topic for government, business, and labor. The antitrust enforcement agencies, consistent with President Biden’s executive order, continue to push antitrust laws to enhance employee mobility and bargaining power.
The U.S. Department of Justice, Antitrust Division, and the National Labor Relations Board (NLRB) entered a memorandum of understanding (MOU) to strengthen their partnership through greater information sharing, coordinated investigations and enforcement activity, and training, education, and outreach. The U.S. Federal Trade Commission entered into a separate MOU with the NLRB outlining ways the Commission and the NLRB will work together on critical issues such as labor market concentration, one-sided contract terms, and labor developments in the gig economy.
State and federal courts continue to work through the recent spate of filed cases that challenge no-hire provisions. McDonald’s obtained a judgment ending the antitrust litigation challenging the legality of the no-hire restraint in its franchise agreements. McDonald’s convinced the court that its previous inclusion of no-hire clauses within its franchise agreements did not violate the Sherman Act. The court also rejected the plaintiffs’ argument that the relevant geographic market for analyzing McDonald’s market power was limited to only McDonald’s-branded restaurants nationally. The decision reaffirms the application of traditional antitrust principles in buy-side labor markets, despite the considerable pressure from government enforcement agencies to apply heightened antitrust scrutiny to these restraints.