Dive Brief:
- Four home healthcare managers or owners in Portland, Maine, allegedly conspired to "suppress the wages and restrict the job mobility" of personal support specialists, according to a grand jury indictment filed Jan. 27.
- The indictment alleged the involved parties entered into an agreement sometime around April 2020. Those involved agreed to pay $15 per hour to uncertified workers and $16 per hour to certified workers. They also attempted to recruit more companies to join the agreement, approaching a fifth home healthcare company that was paying such workers between $17 and $18.50 per hour. Before that approach, the involved parties threatened to submit complaints about that company to MaineCare, Maine's jointly funded federal and state Medicaid program, if it did not retract a rate increase for workers; several members of the conspiracy followed through on those threats days later.
- The alleged conspiracy emerged in the wake of actions from the state and federal government intended to ease business' ability to pay workers during the pandemic. Maine's Department of Health and Human Services had just increased the rate of reimbursement to home healthcare agencies from $20.52 per hour to $26.20 per hour to "allow them to fund pay raises for approximately 20,000 personal care workers." In addition, three of the four agencies had received Paycheck Protection Program loans ranging from $90,000 to $600,000.
Dive Insight:
While the Sherman Antitrust Act may seem less relevant to the HR world than laws governing discrimination and leave, for example, HR pros ignore antitrust rules at their own peril.
In October 2016, the U.S. Department of Justice released Antitrust Guidance for Human Resources Professionals, making it clear HR bears some responsibility for ensuring their companies stay on the right side of the law when it comes to antitrust policies.
"HR professionals often are in the best position to ensure that their companies' hiring practices comply with the antitrust laws," the DOJ wrote in its report. "In particular, HR professionals can implement safeguards to prevent inappropriate discussions or agreements with other firms seeking to hire the same employees."
Companies often run afoul of antitrust legislation when they participate in "no-poach" agreements, through which they agree not to recruit or hire each other's employees.
According to the Society for Human Resources Management, the DOJ traditionally brought civil penalties against companies that enter into no-poach agreements. More recently, however, it has pursued criminal charges — suggesting the agency is getting more serious about antitrust rule-breaking.
In late 2021, employment law attorneys signaled that antitrust law would be a major issue for federal regulators going into 2022. In particular, they addressed President Joe Biden's Executive Order 14036, which addressed antitrust issues in the employment context along with a heavier emphasis on how antitrust violations impact U.S. consumers.
HR pros can brush up on antitrust compliance by reviewing the DOJ's guidance for HR, which explores potential gray areas for employers and clarifies how antitrust legislation overlaps with common HR practices related to compensation, benefits and feedback-gathering.
