Elizabeth Prewitt was quoted by Global Competition Review in two articles on the U.S. government's recent crackdown on employers who have agreed to fix wages or to not hire each other's employees.
On Oct. 20, the Department of Justice's Antitrust Division and the Federal Trade Commission issued guidance to those in charge of hiring and compensation decisions that they will criminally investigate employers who engage in practices to eliminate labor competition, following several civil cases brought by both the antitrust agencies and private litigants alleging such conduct, according to GCR.
Prewitt, who worked at the DOJ for 16 years, told GCR that it is very significant and unusual for the DOJ to begin criminally prosecuting conduct that it has in the past pursued civilly. "The DOJ has historically limited criminal antitrust prosecutions to a small subset of violations which it considers to be severe and well-known by the public to be illegal," she said in the Oct. 24 article, "DoJ to Criminally Pursue No-Poaching Deals."
Prewitt added that the guidance could either have the effect of deterring the conduct or "forcing it further into the shadows." She also noted that the move to criminalize no-poaching agreements seems to be part of a larger shift in the Obama administration's focus on the ability of workers to move from one job to another, which can be hindered through non-compete agreements and no-poaching schemes.
In an Oct. 27 article headlined "Obama Goes After Labor Monopsony Power," GCR reported that, on Oct. 25, the White House issued a statement urging states and Congress to combat reports of declining competition in the U.S. labor market by addressing monopsony power and non-compete agreements.
"It is extraordinary to have what appears to be a coordinated attack on agreements that could have the effect of limiting employee mobility," Prewitt said, referring to the collaboration among the antitrust agencies, the White House and various states, especially the New York Attorney General's office.