DealLawyers.com Blog

In a recent workshop, representatives from the DOJ & FTC addressed possible ways of promoting competition in labor markets and suggested that changes to the Horizontal Merger Guidelines may be on the way.  Here’s an excerpt from this Mintz memo on the workshop:

One of the proposed new approaches was the reconsideration of the DOJ and FTC’s Horizontal Merger Guidelines to include methods of evaluating the effects of merger on competition in the labor markets. Throughout the workshop, many panelists noted that the current Merger Guidelines and the merger review process do not adequately address competitive effects to the labor markets.

Panelists provided several examples of transactions that were not blocked by the agencies under the traditional antitrust analysis but still presented competitive harm in the labor markets, noting for example hospital mergers that resulted in competitive harm to the market for healthcare professionals’ employment services. This point was also emphasized in the Tuesday afternoon keynote by Tim Wu, Special Assistant to the President for Technology and Competition Policy, who noted that reconsideration of the merger guidelines was directly in line with the considerations in President Biden’s Executive Order.

In addition to reconsideration of the agencies’ merger guidelines to require greater scrutiny for the
effects of mergers on labor markets, the memo says that we should expect increased cooperation and involvement by agencies that have previously not been as active in antitrust enforcement, FTC rulemaking on the use of non-compete agreements; and legislative changes to address monopsonies and collective bargaining for gig economy workers.

– John Jenkins