The U.S. Department of Justice has recently announced the indictment of four home health care agencies operators for allegedly conspiring to fix their employees’ wages and eliminate competition through “no-poach” agreements. This shows that the DOJ’s focus on antitrust enforcement is still ongoing, particularly regarding employment practices. This also shows the importance of caution in the current competitive labor market, particularly when talks with competitors occur.

In the current case, the DOJ, as well as the U.S. Attorney for Maine, have alleged that the four individuals and their companies, as well as additional co-conspirators, have violated Section 1 of the Sherman Act through an agreement to limit wages and opportunities to switch employers for Personal Support Specialists under their employ.

These Personal Support Specialists provide personal care services to individuals in their homes. Under the MaineCare system, which is funded jointly by the state and federal governments, these workers’ employers will submit for reimbursement with MaineCare. The difference between this reimbursement and what they pay workers is the profit margin.

According to the indictment, these employers agreed to specific wage rates that they would offer these workers, with hourly rates capped at between $15 to $17 per hour based on the worker’s certification level. They also pressured other competitors to retract any higher advertised wage rates and agreed that they would not attempt to poach each others’ employees.

This is not the only “no-poach” case the DOJ has pursued recently. State and federal government authorities have been investigating a number of these cases in recent years. With rising wages and few available workers, many companies have been faced with considerable temptation, but this can result in:

• Costly and extended criminal and civil litigation
• Monetary penalties of up $1 million for individual offenses or $10 million per company for every violation or if greater than twice the gain of the offender or harm to victims caused by the crime
• Loss of Treble the damages and attorneys fees
• Criminal charges for executives in addition to or in lieu of the company

Employer Takeaways

In response to this greater focus by the DOJ on this type of behavior, employers should consider taking certain steps. This includes reviewing all current hiring policies and practices to ensure no potential antitrust violations and ensuring that all hiring personnel is trained in antitrust compliance.

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