FTC, DOJ Partner with Labor Agencies to Enhance Antitrust Review of Labor Issues in Merger Investigations

The Federal Trade Commission and the Department of Justice Antitrust Division (DOJ), together with the Department of Labor (DOL) and National Labor Relations Board (NLRB), signed a new agreement that will enhance ability of the FTC and DOJ to investigate the impact of mergers and acquisitions on labor markets.

The new memorandum of understanding (MOU) between the four agencies will enhance existing agreements by outlining new measures to help ensure all relevant and appropriate information and expertise provided by DOL and NLRB, as the labor agencies, can be used by the FTC and DOJ in their review of mergers and acquisitions.

“Congress passed the antitrust laws to ensure that all Americans benefit from free and fair competition. When businesses vigorously compete for workers, workers enjoy better wages and working conditions as well as greater opportunity and freedom,” said FTC Chair Lina M. Khan. “By deepening partnerships with the National Labor Relations Board, the Department of Labor, and the Justice Department’s Antitrust Division, the FTC will keep building on our whole-of-government efforts to ensure that all Americans can get a fair shot in our economy, free from unlawful coercion.”

“Competition in labor markets means higher wages, better working conditions, and more opportunities for workers and their families,” said Assistant Attorney General Jonathan Kanter of the Justice Department’s Antitrust Division. “Our partnership with the FTC, NLRB, and DOL will help us identify and take action against mergers that threaten to harm competition for workers. The Antitrust Division did just that when we successfully challenged a merger between book publishers that would have decreased compensation for authors. Promoting workers’ right to earn a fair wage is central to the mission of each of our agencies, and we look forward to deepening our collaboration together.”

“Workers are the backbone of our economy, and it’s critical that the impact on workers and the labor market are given due consideration when analyzing mergers and acquisitions,” said Acting Secretary of Labor Julie Su. “The Department of Labor is committed to providing information and data to strengthen the Department of Justice and Federal Trade Commission’s understanding of labor markets and we look forward to deepening our work to protect workers by promoting fair competition in the labor markets.”

“Taking a whole-of-government approach to enforcing workers’ rights is critically important, and we’re thrilled to be partnering with the antitrust agencies to enhance their ability to obtain important information on the potential effects of mergers on workers,” said NLRB General Counsel Abruzzo.

The new MOU outlines an agreement pursuant to which DOL and NLRB will promptly meet with the FTC and DOJ upon request and provide technical assistance, as well as additional information and data, as appropriate. DOL and NLRB also agree to provide training to appropriate personnel from the antitrust agencies. Additionally, the MOU outlines the following terms, among others:

• The DOL will train appropriate personnel from the antitrust agencies on the issues under their jurisdiction.
• The NLRB will train appropriate personnel from the antitrust agencies on the duty to bargain in good faith, successor bargaining obligations, and unfair labor practices, among other topics.
• The antitrust agencies and the labor agencies will endeavor to meet biannually to discuss implementation and coordination of the activities described in the MOU.
• The MOU makes clear that it supplements, and does not supersede, the previously identified bilateral agreements between the labor agencies and antitrust agencies.

The MOU builds on the FTC’s recent efforts to protect competition in labor markets, which includes the FTC’s 2022 MOU with the NLRB and the FTC’s 2023 MOU with DOL, as well as the FTC’s enforcement policy statement related to gig work. The FTC has also taken steps to protect competition in labor markets through merger enforcement actions, including through the Commission’s challenge of Kroger Company’s acquisition of the Albertsons Companies, Inc. and Tapestry, Inc.’s acquisition of Capri Holdings Limited.

The FTC’s work to protect competition in labor markets also includes efforts to stop noncompete agreements, which restrict the economic liberty of hardworking Americans, hamper economic growth, limit innovation, and depress wages. This includes both issuing a rule to ban noncompetes and bringing enforcement actions against noncompetes. For example, the FTC has required firms to eliminate noncompetes for thousands of workers as part of Commission orders with several companies including Anchor Glass, Ardagh Group, Prudential Security, I-O Glass, 7-Eleven, and DaVita.

The memorandum of understanding was signed by FTC Chair Lina M. Khan, DOJ Antitrust Division Assistant Attorney General Jonathan Kanter, DOL Acting Secretary of Labor Julie Su, and NLRB General Counsel Jennifer Abruzzo.