ECONOMIC EVIDENCE IN CRIMINAL LABOR CASES

By Erin Johnson, Ph.D.¹

California has led the states in enacting and enforcing legislative worker protections, including pay equity protections, pay transparency laws, and bans on non-compete agreements.² Consistent with that leading role, California was the first state antitrust enforcer to indicate that agreements between horizontal competitors for labor would be prosecuted as criminal violations of its state antitrust law, the Cartwright Act.³ This comes after, and aligns California with, the Department of Justice (DOJ) and the Federal Trade Commission (FTC)’s announcement of their intention to bring criminal labor cases under the Sherman Act in 2016, with the DOJ subsequently following through and bringing cases alleging criminal no-poach and wage-fixing violations in various labor markets.⁴ Since 2016 the California AG’s office has filed a number of amicus briefs in support of both criminal and civil no-poach and wage-fixing cases.⁵ As a further indication of California’s support for antitrust protections for workers, in 2023 California AG Rob Bonta stated, "[w]orkers should be able to move freely to another job—one that might pay them better, or have better hours, or better benefits, or be closer to their home."⁶

With no precedent for criminal wage-fixing and no-poach cases under California state law, the federal precedent is informative for practitioners. In criminal cases, the DOJ has argued to exclude economic evidence, claiming that it is not informative regarding the existence of or intent behind per se unlawful antitrust conspiracies.⁷ However, economic evidence has recently proved important in two federal criminal cases, and it may prove

[Page 52]