The Federal Trade Commission and Department of Justice’s Antitrust Division have put labor issues at the center of antitrust enforcement and policy making. The agencies are closely examining companies’ hiring, recruitment, non-compete, and employee classification and compensation policies. They have recently amended the merger review process to require parties to provide granular information about their labor force to screen for potential impact on labor markets, and have signaled they may challenge a proposed merger if it impacts workers but not consumers. The FTC has also recently entered agreements to share investigative files, personnel, and other intelligence with both the National Labor Relations Board and the Department of Labor, and may soon issue its first unfair competition rule that may ban non-compete provisions in employment contracts nationwide. This panel examined these developments and discussed how big of a role antitrust should play in labor matters.

Antitrust Agencies' Scrutiny of Labor

*This series was formerly known as Teleforums. FedSoc Forums is a virtual discussion series dedicated to providing expert analysis and intellectual commentary on today’s most pressing legal and policy issues. Produced by The Federalist Society’s Practice Groups, FedSoc Forum strives to create balanced conversations in various formats, such as monologues, debates, or panel discussions. In addition to regular episodes, FedSoc Forum features special content covering specific topics in the legal world, such as:Courthouse Steps: A series of rapid response discussions breaking down all the latest SCOTUS cases after oral argument or final decisionA Seat at the Sitting: A monthly series that runs during the Court’s term featuring a panel of constitutional experts discussing the Supreme Court’s upcoming docket sitting by sittingLitigation Update: A series that provides the latest updates in important ongoing cases from all levels of governmentThe Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.

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Starbucks Corp. v. McKinney sits at an interesting intersection of Labor and Administrative law. The facts of the case concern Starbucks Corp.'s alleged retaliation against seven Memphis workers for unionization efforts. The employees received disciplinary action and ultimately lost their jobs in the wake of their involvement in a unionization effort. In the following investigation, the NLRB found that there was reasonable cause to believe Starbucks had acted in retaliation against protected unionization efforts. A district court issued a temporary injunction and required the 7 former employees to be reinstated. The Sixth Circuit affirmed on appeal, concluding the NLRB had satisfied its burden in showing there was "reasonable cause" that Starbucks had violated the National Labor Relations Act and thus the NLRB could use its remedial power. Starbucks appealed again and the case was heard by the Supreme Court on April 23, 2023.The question before the Supreme Court, however, is not the Labor Law question of whether Starbucks violated the NLRA, but an Administrative law one as the case asks what standard the NLRB needed to meet to obtain an injunction under Section 10(j) of the NLRA from a court. Is "reasonable cause" enough or is there a more stringent test a court should use?Join us as we break down and analyze this interesting case and the Oral Argument in the days following the argument before the Court.Featuring:Sheng Li, Litigation Counsel, New Civil Liberties Alliance

Courthouse Steps Oral Argument: Starbucks Corp. v. McKinney

On March 5, 2024, U.S. District Court Judge Mark Pittman of the Northern District of Texas entered a declaratory judgment and nationwide injunction against the Minority Business Development Agency, preventing the agency from extending a federally-sponsored racial preference to groups seeking to access capital and government contracts. This case, Nuziard v. MBDA, expands upon last summer's Supreme Court ruling in SFFA v. Harvard, which struck down affirmative action in college admissions. Daniel Lennington of the Wisconsin Institute for Law & Liberty, who litigated the case, discussed the case and its impact on the future of equality.

Nuziard v. MBDA: What is the Future of Equal Protection Litigation?

In 2002, under Chairman Michael Powell, the FCC passed the Cable Modem Order which classified cable modem internet service providers (ISPs) as not subject to common carrier non-discrimination requirements. The order’s critics said the FCC had created a non-neutral internet where dominant firms could use their market power to harm consumers and diminish competition. After several attempts, which the D.C. Circuit rejected, the FCC under Chairman Wheeler imposed network neutrality requirements on ISPs in the Protecting and Promoting the Open Internet order in 2015. Then, the FCC under Chairman Pai largely revoked the network neutrality rules in the Restoring Internet Freedom order in 2017. Now, under Chair Rosenworcel the FCC has just reimposed network neutrality.This panel discussed the legal future on appeal of this most recent iteration in what appears to be an unending partisan regulatory saga—especially in light of the Supreme Court’s changing views on administrative review. The panel also investigated whether this over two decade old policy dispute is fighting yesterday’s war as many believe that there have been few competitive abuses by ISPs during the last two decades—and arguably competitive abuses by dominant firms has moved elsewhere in the web.

Déjà Vu all over again? The Return of Network Neutrality

In the consolidated Students for Fair Admissions cases, the Supreme Court held unlawful the use of race in undergraduate admissions at Harvard University and the University of North Carolina. Many colleges and universities have nonetheless indicated that they plan to circumvent the decision by using proxies for race instead.  A 1978 Supreme Court case, Village of Arlington Heights v. Metropolitan Housing, held that using proxies for race to discriminate is generally as unlawful as using race itself. Arlington Heights also sets forth a test for identifying when a challenged policy is prohibited proxy discrimination. But the lower courts have applied Arlington Heights in different ways to challenged admissions policies, with some lower courts engaging in tough scrutiny of challenged policies and with others being much more deferential to assertions of benign intent.This panel addressed: is proxy discrimination unlawful under the Fourteenth Amendment? If yes, what is the right legal test -- Arlington Heights or something else? What challenged policies, if any, are prohibited proxy discrimination?

Discrimination By Proxy?: Arlington Heights Cases in the Post Students for Fair Admissions Era

In 2021, in Arkansas State Conference NAACP v. Arkansas Board of Apportionment, private litigants sued to challenge the Arkansas state House redistricting map as violating Section 2 of the Voting Rights Act by illegally diluting the vote of racial minorities. In 2022, the U.S. District Court for the Eastern District of Arkansas ruled that Section 2 of the Voting Rights Act does not grant a private right of action. In 2023, the U.S. Court of Appeals for the Eighth Circuit affirmed the district court holding, and in 2024, the Eighth Circuit denied rehearing of the case en banc. In this panel, three voting rights practitioners will provide their analysis of the Voting Rights Act, the Eighth Circuit's decision, and the implications of this decision on redistricting and voting rights cases. Featuring: J. Christian Adams, President and General Counsel, Public Interest Legal Foundation Nicholas Bronni, Solicitor General, The State of Arkansas Jeffrey Wice, Adjunct Professor of Law, New York Law School &amp; Senior Fellow, New York Census and Redistricting Institute (Moderator) Maya Noronha, Civil Rights Attorney

Antitrust Agencies' Scrutiny of Labor

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