Federal Agencies Partner to “Protect Workers” in Mergers and Acquisitions.

The U.S. Department of Labor, the National Labor Relations Board, the U.S. Department of Justice, and the Federal Trade Commission recently announced a joint “Memorandum of Understanding on Labor Issues in Merger Investigations” based on their shared “interest in protecting American workers and promoting fair competition in labor markets.”

The MOU establishes a “Labor Information Sharing Protocol” for use during an investigation of a proposed acquisition or merger to determine if there is a negative impact on competition for labor. Under the protocol, the FTC and DOJ (the “Antitrust Agencies”) may utilize data from the DOL (including worker and employer statistical data and labor standards enforcement activity) and NLRB (including enforcement and representation cases involving the entities at issue and/or others in the relevant labor markets). The Antitrust Agencies may also seek technical assistance from the NLRB and DOL (the “Labor Agencies”) on labor and employment law matters. In addition, the Labor Agencies will provide training to Antitrust Agency personnel on issues under their jurisdiction.

Thus, employers engaged in mergers or acquisitions need to be aware that there may be heightened scrutiny on labor and employment matters during Antitrust Agency review. This is yet another instance of more cooperation among federal agencies, which can lead to more liability for employers.