RELATED ALERT: DOJ Antitrust, HHS Enter 2023 With New Memorandum of Understanding, Coordinated Enforcement (December 27, 2022)
On July 26, 2022, the U.S. Department of Justice (DOJ) Antitrust Division and the National Labor Relations Board (NLRB) signed a joint memorandum of understanding (MOU) with the goal of “promoting the free flow of commerce and fair competition in labor markets.”
In a press release announcing the MOU, the agencies specifically identified a shared interest in protecting workers “from collusive or anticompetitive employer practices and unlawful interference with employees’ right to organize.” The MOU comes shortly after the one-year anniversary of the Biden administration’s Executive Order on Promoting Competition in the American Economy, and on the heels of a separate MOU signed by the NLRB and the Federal Trade Commission (FTC) aimed at promoting similar goals. The recent MOU states that the DOJ and NLRB intend to collaborate in the following ways:
- Appointing Liaisons. The agencies will designate one or more points of contact to meet, at least quarterly, to discuss topics of mutual interest to the agencies.
- Information Sharing. The agencies plan to share complaints, investigative files, reports and guidance on policy and enforcement matters.
- Training, Education and Outreach. The agencies will provide training to each other’s staff to help them identify cases and issues that may arise under the other agency’s jurisdiction. They also anticipate engaging in public outreach and education, developing joint policy statements to increase public awareness of their respective missions, and sharing or developing joint training materials and programs.
- Coordinated Enforcement. The agencies intend to establish procedures for consulting and coordinating at various stages of their respective antitrust and labor law investigative and enforcement activities, aiming to promote coordinated enforcement initiatives, increase efficiency and minimize duplication. The coordination will include periodically consulting on specific complaints or unfair labor practice charges.
- Referrals. The agencies will potentially refer matters to each other when one agency’s investigation uncovers conduct falling within the purview of the other agency. For example, when the NLRB detects potential antitrust violations while investigating conduct under the National Labor Relations Act, it will evaluate the conduct and potentially refer the matter to the Antitrust Division, which will then determine whether to open its own investigation into the conduct.
The MOU between the FTC and the NLRB, signed on July 19, 2022, similarly aims to facilitate cross-agency information sharing and consultation, training, and public outreach and education.
McGuireWoods’ experienced antitrust and labor and employment attorneys are monitoring these initiatives, and they are available to respond to your inquiries about the effect of these initiatives on your business.