Wage-Fixing: An Alternative to DOJ’s No-Poach Prosecutions?

According to the six-count felony indictment, Companies A through F were HHAs that competed with each other in the Las Vegas metropolitan area to attract, hire, and retain nurses to provide private nursing services.  Nurses chose which of these companies to work for based on factors such as wage rate, volume of patient referrals, and location of the patients. Lopez held executive positions at three of these companies, one of which he founded. For each of the HHAs where he worked, Lopez oversaw recruitment, hiring, retention and assignments of nurses and other health care staff.

The indictment charged Lopez with agreeing to suppress and eliminate competition for the services of nurses between March 2016 and May 2019. Lopez and his co-conspirators participated in meetings and communications where they discussed and agreed to fix and implement wages within specific ranges affecting hundreds of nurses. They further collected, exchanged, monitored, and discussed information on wages to adhere to the informal agreement among the HHAs.

Where criminal no-poach cases have historically failed in courts around the country, here DOJ secured a criminal conviction based on a closely related wage-fixing theory. Looking ahead, this verdict indicates that DOJ may have found an alternative to no-poach prosecutions in some labor-related antitrust prosecutions.

Earlier this year, Federal Trade Commission Chair Andrew Ferguson signaled in his announcement of a Joint Labor Task Force that deceptive practices in labor markets would be an enforcement priority. He specifically addressed no-poach agreements in his announcement, and this conviction could indicate that there may be many more wage-fixing cases to come. Companies should refresh existing compliance programs to address potentially unfair employment-related practices and to reduce exposure to labor market competition enforcement risks.