Last week, a grand jury indicted four managers of home health care agencies for
allegedly conspiring to “suppress wages and restrict the job mobility of” essential
workers. The indictment alleges that the four individuals conspired to eliminate
competition for the services of personal support specialists (i.e., aides) by agreeing to
fix the rates paid to the workers and by agreeing not to hire each other’s aides. The
indictment alleges that, among other actions, the individuals “participated in
conversations and communications regarding MaineCare’s rate increases,” including
communications “using an encrypted messaging app,” attended virtual and in-person
meetings and “engaged in discussions to collectively fix the hourly rates for workers
and refrain from hiring each other’s workers, and exchanged a series of group
messages agreeing to fix rates at $15 per hour for workers. The indictment follows on
the heels of a statement by a representative of the U.S. Department of Justice (“DOJ”),
announcing that the DOJ will continue to “target [] excessive concentration and abuses
by employers in labor markets.”

In a tight market, employers that are considering pacts or agreements with other
employers whereby each employer abstains from hiring the other employer’s workers
are not uncommon. Indeed, the New York State Attorney General is investigating
certain healthcare employers under this theory of violations. Employers should speak
with counsel before entertaining or entering into these types of agreements, whether
they are written or unwritten agreements.

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