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.