US government attorneys scored a recent win in an antitrust case in which they argued a staffing firm sought to lower nurses’ wages by illegally suppressing competition, marking the end of one high-profile battle in a contentious field of employment.
The US Department of Justice (DOJ) recently announced that VDA OC LLC pled guilty and was sentenced for engaging in a wage-fixing conspiracy. US District Court Judge Richard F. Boulware II sentenced VDA to pay a criminal fine of $62,000 and restitution of $72,000 to nurses who were affected by these actions.
In court documents filed last year, DOJ attorneys outlined their case against VDA, then known as Advantage on Call, LLC, one of two of the primary providers of contract nursing services to Nevada’s Clark County School District.
An employee of Advantage on Call, Ryan Hee, sought to prevent nurses from seeking better wages by conspiring with the other company to have a “no-poaching” agreement, DOJ said.
The complaint filed last year said Hee and an employee of another staffing firm agreed not to recruit or hire each other’s nurses assigned to the Clark County School District.
The DOJ court filing quotes an email from Hee saying, “If anyone threatens us for more money, we will tell them to kick rocks!”
The DOJ described the federal actions taken in this case as protecting the free and open labor markets that “are a cornerstone of the American dream.”
Jonathan Kanter
“Today’s guilty plea demonstrates our commitment to ensuring that workers receive competitive wages and a fair chance to pursue better work and that criminals who conspire to deprive them of those rights are held accountable,” Assistant Attorney General Jonathan Kanter of the DOJ’s Antitrust Division said in the press statement.
“The court’s sentence will compensate the hardworking health care workers who were victims of this crime.”
Hee, the Advantage on Call employee who wrote the “tell them to kick rocks” email, declined through an attorney to comment on the case. Attempts to reach VDA for comment were not successful.
According to Bloomberg Law, VDA told that news organization that the public plea agreement involved an “extremely limited” matter.
The agency described the matter as involving “a single telephone conversation and one email” between one of its employees and an employee of a competitor, Bloomberg Law reported. These occurred on October 21, 2016, immediately after the DOJ issued its Antitrust Guidance for HR Professionals, VDA said in the Bloomberg report.
No-Poaching Arrangements
DOJ earlier signaled its interest in what are called no-poaching arrangements by offering its view in a court case involving two nurse staffing businesses.
Aya Healthcare Services, Inc, filed a suit in 2017 in federal court against AMN Healthcare. Aya, a subcontractor of AMN, contended that AMN’s no-poaching practices were barred by federal law. The case reached the Ninth Circuit Court of Appeals, which oversees disputes originating in the western US. In 2021, the Ninth Circuit Court of Appeals ruled in favor of AMN, saying the no-poaching policy was not an unreasonable restraint in violation of the federal antitrust law known as the Sherman Act.
DOJ weighed in in this case through a filing known as an amicus brief in support of neither party, stating that agreements among “competing employers not to solicit or hire each other’s employees have almost identical anticompetitive effects to wage-fixing agreements: They enable the employers to avoid competing over wages and other terms of employment offered to the affected employee,” DOJ staff wrote in the 2020 brief.
Jerome W. Hoffman
In a June 2022 blog post, Jerome W. Hoffman and attorney colleagues at the firm Holland & Knight described this action as DOJ taking “an opportunity to defend its well-documented position that naked no-poach agreements between competitors are per se unlawful under the Sherman Act,” which is a key federal antitrust law.
Kerry Dooley Young is a freelance journalist based in Miami Beach.
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