ESPAÑOL
McGillivary Steele Elkin Hero Background Image

November 15, 2022

DOJ Notches First Conviction of a Corporation for Wage-Fixing and No-Poach Antitrust Conspiracy

The health care staffing company VDA OC LLC (formerly known as “Advantage On Call LLC”) pled guilty to one count of criminal violation of the Sherman Antitrust Act, admitting to “knowingly entering into and engaging in a conspiracy to suppress and eliminate competition for the services of nurses in the District of Nevada and elsewhere,” by agreeing to allocate and “fix the wages” of Clark County nurses.
Home » News » DOJ Notches First Conviction of a Corporation for Wage-Fixing and No-Poach Antitrust Conspiracy

John Stewart
Tue, 11/15/2022

The health care staffing company VDA OC LLC (formerly known as “Advantage On Call LLC”) pled guilty to one count of criminal violation of the Sherman Antitrust Act, admitting to “knowingly entering into and engaging in a conspiracy to suppress and eliminate competition for the services of nurses in the District of Nevada and elsewhere,” by agreeing to allocate and “fix the wages” of Clark County nurses. Pursuant to a plea agreement, the company was sentenced to pay a criminal fine of $62,000.00 and restitution of $72,000.00.

This plea agreement marks the DOJ’s first significant success in its initiative to police “no-poach” agreements and wage fixing schemes, originally begun in October 2016 with the DOJ’s and FTC’s joint publication, “Antitrust Guidance for Human Resources Professionals.” In that publication, the government warned that:

Going forward, the DOJ intends to proceed criminally against naked wage-fixing or no-poaching agreements. These types of agreements eliminate competition in the same irredeemable way as agreements to fix product prices or allocate customers, which have traditionally been criminally investigated and prosecuted as hardcore cartel conduct. Accordingly, the DOJ will criminally investigate allegations that employers have agreed among themselves on employee compensation or not to solicit or hire each others’ employees. And if that investigation uncovers a naked wage-fixing or no-poaching agreement, the DOJ may, in the exercise of its prosecutorial discretion, bring criminal, felony charges against the culpable participants in the agreement, including both individuals and companies.

With the VDA OC LLC conviction, hopefully more employers will take note of the DOJ’s and FTC’s guidance: naked wage-fixing or no-poaching schemes harm employees and can lead to real criminal charges.

Notably, the DOJ is not the only game in town. Employees can also file suit, whether individually or in large class actions, against employers for the same types of wage-fixing and no-poach agreements. In fact, because the Sherman Antitrust Act allows parties to seek treble damages, the resulting settlements/judgments can be significantly higher than the fine and restitution to be paid by VDA OC LLC.

As the DOJ and FTC cautioned in their 2016 guidance: “[v]iolations of the antitrust laws can have severe consequences. Depending on the facts of the case, the DOJ could bring a criminal prosecution against individuals, the company, or both. . . . . In addition, if an employee or another private party were injured by an illegal agreement among potential employers, that party could bring a civil lawsuit for treble damages (i.e., three times the damages the party actually suffered).”

Legal Representation for All Workers

When McGillivary Steele Elkin LLP decides to take your case, it is because we believe there is an unacceptable workplace violation that has negatively impacted you or resulted in your employer paying less than what the law requires and which we have a reasonable chance of remedying. We recognize that meritorious claims should not go unremedied because of the level of a person’s resources.

To ensure accessible and available legal representation for all our clients, MSE handles cases through different forms of fee arrangements, including contingency fees, hourly fees and fixed fees.

McGillivary Steele Elkin Chat Icon