The Enduring Ambiguities of Antitrust Liability for Worker Collective Action

Abstract

This Article examines the origins of the rule that antitrust law regulates and largely prohibits collective action by workers who fall outside the bounds of employment, and who therefore presumptively do not receive the benefit of the labor exemption from antitrust.

The threat that organizing for decent wages and working conditions will be prosecuted as price-fixing is a powerful constraint upon such workers' ability to take action to change their circumstances. Antitrust has historically structured the nature and content of labor regulation in this country, and it is currently poised to do so again in a new form. It did so directly and punitively in the Gilded Age. During the New Deal era, the default rule that worker collective action is illegal under antitrust actually solidified its subterranean hold while the law of the labor exemption mostly blunted its practical effects. In today's deregulation era, it is of increasing significance in regulating workers who fall outside the bounds of the NLRA (and other employment and labor law); as a limit upon new forms of labor regulation that would bring these nontraditional workers within their scope; and as a potential baseline for labor law reform generally.

Antitrust has irreducible political and normative content, despite its sometime claim of being justified on economic grounds that are independent of politics and moral norms. The key cases show that such extrinsic normative considerations operate, albeit tacitly, in antitrust's relationship to labor, which has changed over time according to the specific policy project embraced by decision-makers. The default rule that workers and other less-powerful economic actors are subject to the heavy hammer of the price-fixing doctrine for cooperation in pursuit of a decent livelihood ought to be revisited.

Keywords: labor, antitrust, independent contractor, labor exemption, collective action