Much has been made of the anticipated “Blue Wave” in the upcoming November midterms.  Last July, Democrats unveiled a set of legislative priorities—collectively referred to as “A Better Deal”—they intended to trumpet to connect with voters and ride to congressional majorities.  While proposals such as “Medicare for All” and a $15 minimum federal wage garner substantial coverage, others have flown under the radar. One of these less discussed items—but arguably no less significant—is the call for aggressive expansion of the antitrust laws. The details have varied, but the common tenet seems to be a shift in the goals of antitrust—taking it from a competition-protecting doctrine that has focused primarily on consumer-welfare for the past 40 years, to a multi-purpose regime tasked with promoting social goals such as employment and small business concerns, a philosophy championed by Justice Brandeis that some argue was the original intent of the Sherman Act.

In late April, House Democrats revealed some specific proposals in a slate of bills set on changing the application of antitrust law to employment issues, manifested in proposed legislation such as the End Employer Collusion Act and the Workforce Mobility Act. Representative Keith Ellison (D.-MN) introduced the End Employer Collusion Act, which broadly bans all agreements between employers not to poach each other’s employees. (A similar bill was introduced by Senators Cory Brooker and Elizabeth Warren in March.) The Workforce Mobility Act (introduced by Rep. Joseph Crowley (D.-NY)) would presume non-compete provisions in employment agreements to be illegal unless the employer can show that the provision is not anticompetitive. Despite their superficial appeal, a deeper dive into the conduct these bills would prohibit may be useful to understand the potential for these proposals to limit the competitive benefits no-poach and non-compete arrangements often bring.

Tepid Wage Growth in a Warm Economy