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DOJ and FTC Warn Companies to Avoid Anticompetitive Employment Practices During COVID-19 Pandemic

Client Alert | 2 min read | 04.16.20

In a joint statement, the U.S. Department of Justice and Federal Trade Commission recognized that protecting the health, safety and welfare of Americans during the COVID-19 crisis will require unprecedented cooperation among governmental and private sector entities. In doing so, however, the agencies cautioned companies that “COVID-19 does not provide a reason to tolerate anticompetitive conduct that harms workers,” including medical professionals, first responders, and other essential service providers. Thus, while praising companies and individuals that have “demonstrated extraordinary compassion and flexibility in responding to COVID-19,” the agencies stated that they “will not hesitate to hold accountable” those that “may use [the crisis] to prey on American workers by subverting competition in labor markets.”

In their joint statement, the DOJ and FTC indicated that they will be monitoring whether employers, staffing agencies, and recruiters engage in anticompetitive employment practices – including naked wage-fixing and no-poach agreements – that harm workers during the COVID-19 crisis. The agencies stated that they are particularly concerned about agreements among employers to lower the compensation, benefits, or hours worked for healthcare professionals and those who work in grocery stores, pharmacies, delivery and distribution networks, warehouses, and other essential sectors. Companies and individuals involved in such agreements could face criminal prosecution. The agencies also promised to bring civil enforcement actions against companies and individuals that invite others to collude when it comes to employee recruitment and compensation even if such an invitation is not accepted.

The DOJ and FTC further indicated that they may use their civil enforcement authority to challenge unilateral anticompetitive conduct by employers that harms competition in a labor market during the COVID-19 crisis. Such unilateral conduct could include a large employer’s use of its monopsony power in a labor market to artificially suppress wages or to unreasonably limit the employment opportunities for permanent or temporary workers through overly broad or unnecessary non-compete clauses.

The DOJ and FTC’s decision to issue this warning during the COVID-19 pandemic appears to be a continuation of the agencies’ focus on increasing their enforcement efforts in the employment context, which the agencies have made a top priority since issuing their Antitrust Guidance for Human Resources Professionals in October 2016.

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Client Alert | 5 min read | 12.12.25

Eleventh Circuit Hears Argument on False Claims Act Qui Tam Constitutionality

On the morning of December 12, 2025, the Eleventh Circuit heard argument in United States ex rel. Zafirov v. Florida Medical Associates, LLC, et al., No. 24-13581 (11th Cir. 2025). This case concerns the constitutionality of the False Claims Act (FCA) qui tam provisions and a groundbreaking September 2024 opinion in which the United States District Court for the Middle District of Florida held that the FCA’s qui tam provisions were unconstitutional under Article II. See United States ex rel. Zafirov v. Fla. Med. Assocs., LLC, 751 F. Supp. 3d 1293 (M.D. Fla. 2024). That decision, penned by District Judge Kathryn Kimball Mizelle, was the first success story for a legal theory that has been gaining steam ever since Justices Thomas, Barrett, and Kavanaugh indicated they would be willing to consider arguments about the constitutionality of the qui tam provisions in U.S. ex rel. Polansky v. Exec. Health Res., 599 U.S. 419 (2023). In her opinion, Judge Mizelle held (1) qui tam relators are officers of the U.S. who must be appointed under the Appointments Clause; and (2) historical practice treating qui tam and similar relators as less than “officers” for constitutional purposes was not enough to save the qui tam provisions from the fundamental Article II infirmity the court identified. That ruling was appealed and, after full briefing, including by the government and a bevy of amici, the litigants stepped up to the plate this morning for oral argument....

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