While the Department of Labor (DOL) is moving ahead with eventual rulemaking to update the current independent contractor regulations, other federal agencies are using their authority to address abuses that impact labor markets. At least one health care staffing firm has been caught up in enforcement measures, but not for misclassification—for anti-trust violations.
Recently, the Federal Trade Commission (FTC) entered a Memorandum of Understanding (MOU) with the National Labor Relations Board (NLRB), enabling the two agencies to work together to combat anti-competitive employer actions or policies that suppress pay and benefits. This collaborative effort fulfills President Biden’s promise to end anti-competitive labor and business practices. Gig economy workers and independent contractors and the use of non-competes and non-disclosure agreements are expected to be a primary focus.
In addition to DOL, FTC, and NLRB action, the Department of Justice (DOJ) is pursuing criminal and/or civil actions against employers who violate anti-trust laws. DOJ is working to resolve criminal charges against a health care staffing firm that colluded with another business to suppress the compensation of independent contractor school nurses. It’s reported that this case would be the first successful criminal prosecution of a workplace antitrust matter. In March 2022, DOL and DOJ Antitrust Division signed an MOU to “protect workers from employer collusion, ensure compliance with the labor laws and promote competitive labor markets and worker mobility.”
The TechServe Government Affairs Team will continue to follow and advocate for independent contractor laws and regulations that eliminate uncertainty for IT and engineering staffing firms that hire professionals who chose to work as independent contractors. In the meantime, we wanted to keep members apprised of new enforcement measures.
Additional information is provided below, including a law firm’s general advice on navigating the anti-trust issues.
- Legal Drive, “Biden’s Putting Heat on Companies’ Treatment of Independent Contractors,” August 24, 2022
- “Feds on Verge of First-Ever Successful Criminal Prosecution in Workplace Antitrust Action: 6 Compliance Tips for Employers,” by FisherPhillips (July 14, 2022)
Please contact the TechServe Government Affairs Team with any questions.
