Department of Justice Antitrust Division Announces Agenda and Panelists for Joint Agency Workshop on Competition in Labor Markets with the U.S. Federal Trade Commission

The Department of Justice has released the agenda and list of participants for its public workshop on the role of antitrust enforcement in labor markets and promoting robust competition for the American worker.  The workshop will be the first in a two-part series hosted together with the U.S. Federal Trade Commission.

The first workshop, which the Justice Department will host on Sept. 23, 2019, will cover a variety of labor competition issues, including, among other topics, anticompetitive no-poach and wage-fixing agreements, approaches to labor market definition, the role of employer collaboration and contractual arrangements between employers on competition for workers, labor monopsony in merger enforcement, and antitrust exemptions for union activity and collective bargaining. Panelists will discuss recent developments in the law, economic research, and policy proposals, as well as how to effectively develop cases challenging labor monopsony. 

The agenda for the workshop includes a morning session from 10 a.m. to 12:30 p.m. and an afternoon session from 2 p.m. to 5:30 p.m. Details are as follows:

Morning Session

Opening Remarks

  • Makan Delrahim, Assistant Attorney General for Antitrust, U.S. Department of Justice

Presentation: Economics of Labor Markets and Key Questions for the Workshop

  • Ioana Marinescu, Assistant Professor, School of Social Policy & Practice, University of Pennsylvania
  • Elena Prager, Assistant Professor of Strategy, Kellogg School of Management, Northwestern University

Panel 1: Approaching Labor Market Definition

Panelists will discuss how labor markets should be defined in antitrust analysis and the appropriate tools, methods and categories of information required for such analysis.  The panel also will discuss market definition in merger and non-merger cases, and when antitrust enforcers should investigate labor monopsony theories in merger reviews.

  • Orley Ashenfelter, Professor of Economics, Princeton University
  • Patrick Greenlee, Economist, Antitrust Division, U.S. Department of Justice
  • Dean Harvey, Lieff Cabraser Heimann & Bernstein, LLP
  • Kevin Murphy, Professor of Economics, Booth School of Business, University of Chicago

Afternoon Session

Afternoon Remarks

  • Ramogi Huma, Executive Director, National College Players Association

Panel 2: Ancillarity, Collaborations and Contractual Arrangements: Assessing Antitrust Harm in Complex Business Settings

Restraints on worker mobility are not always purely horizontal or purely vertical, and they sometimes arise in complex business settings, including a variety of collaborations, that blur the lines between interbrand and intrabrand competition. The panel will explore recent developments in the case law and economic literature and discuss how antitrust enforcers should assess restraints on worker mobility, including restraints that arise within franchise systems and for workers in the “gig” economy.

  • Rachel Brass, Partner, Gibson, Dunn & Crutcher LLP
  • Darrell Johnson, CEO, FranDATA
  • Rahul Rao, Assistant Attorney General, Washington State Attorney General
  • Marshall Steinbaum, Assistant Professor, Department of Economics, University of Utah
  • Randy Stutz, Vice President of Legal Advocacy, American Antitrust Institute
  • Samuel Weglein, Managing Principal, Analysis Group, Inc.

Panel 3: Labor Unions and Collective Bargaining

The panel will address the latest developments in case law and public policy regarding statutory and non-statutory labor exemptions from the antitrust laws for collective bargaining and other union activity.  Panelists also will discuss how the evolving status and classification of workers, including workers in the digital economy, dovetails with these labor exemptions. 

  • Jonathan Berry, Principal Deputy Assistant Secretary for Policy, U.S. Department of Labor
  • W. Stephen Cannon, Constantine Cannon LLP
  • Matthew Ginsburg, Associate General Counsel, AFL-CIO
  • Jeffrey Kessler, Winston & Strawn LLP
  • Derek Ludwin, Covington & Burling LLP
  • Sanjukta Paul, Assistant Professor of Law, Wayne State University

Closing Remarks

  • Ronald Drennan, Acting Economics Director of Enforcement

The Department of Justice invites comments from the public on the topics covered by this workshop.  Interested parties may submit public comments online now through Oct. 23, 2019 at ATR.LaborWorkshop.Info@usdoj.gov

The workshop is free and open to the public and will take place in the DOJ Conference Center, Room 7411 of the Robert F. Kennedy Department of Justice Building, 950 Pennsylvania Avenue NW, Washington, D.C., from 10 a.m. to 5:30 p.m. EDT on Sept. 23, 2019.  A recording of the workshop will be available on the Antitrust Division’s website.  Registration information, an agenda, directions to the event, and a list of speakers are available on the event webpage.  Attendees are encouraged, but not required, to register in advance for the workshop here.  Members of the press also should email Alexei.Woltornist@usdoj.gov.  Seating will be on a first-come, first-served basis. Attendees should bring a valid government-issued photo ID (government badge, license, passport, etc.) and arrive in time to go through security.

Reasonable accommodations for people with disabilities are available upon request.  If you need such an accommodation, please contact Alexei Woltornist in the Office of Public Affairs at Alexei.Woltornist@usdoj.gov.  Such requests should include a detailed description of the accommodations needed and a way to contact you if we need more information.

The second day of the workshop will be hosted by the Federal Trade Commission and will focus on the legal, economic and consumer protection issues associated with the use of non-compete clauses in employment contracts.  The workshop will examine the current state of economic research on the effects of non-compete clauses, and whether additional research would allow the agencies to better understand the short-term and long-term micro and macro effects of such clauses.  The Federal Trade Commission will announce the date and agenda for the second workshop at www.ftc.gov. 

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Author: September 20, 2019

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