Earlier this month, the Biden administration announced a broad executive order designed to counter anti-competitive practices by business for the benefit of consumers and workers.

The Biden order concerns anti-trust law which regulates business practices. I believe the proposals will have some benefit to workers hurt at work. But I also believe that more aggressive measures not mentioned in the Biden order would have a stronger impact on injured workers. Unfortunately, from a practical perspective, executive orders and administrative rule making could be blocked by Federal courts.

Non-compete agreements for fast-food and other low wage workers

The Biden order would seek to have the Federal Trade Commission, FTC,  seek to eliminate non-compete agreement among fast workers. These agreements have drawn bi-partisan ire and even merited a trademark “Come on” from President Biden.

In the context of workers compensation, these non-compete agreements can deter injured workers from seeking lighter work at competing employers.

While non-compete agreements among restaurant and retail workers are broadly opposed, other anti-trust measures are more controversial, but probably more beneficial to injured employees.

Workers compensation and coordination

One school of thought on anti-trust holds that anti-trust law should regulate “coordination” rights” regardless of whether a corporation is coordinating with other entitles or coordinating within a business. I wrote last summer how anti-trust enforcements centered on coordination rights could limit worker misclassification. Anti-trust enforcement focused on coordination rights could also crack down on the use of occupational medicine clinics and medical examiners used by insurers/employers to reduce workers’ compensation benefits paid to workers.

The Biden order does not address these practices. But I think the order makes some nods towards the coordination rights theory of anti-trust by limiting how employers share information about benefit levels. But the main thrust of the Biden order is to ensure competition between businesses.

But even this less aggressive view of anti-trust is anathema to proponents of the “consumer welfare” school of anti-trust who hold that monopoly or oligopoly is fine so long as consumers get cheap or free stuff.

Anti-trust and the federal courts

Of course, the consumer welfare school of anti-trust is influential, if not dominant, in the Federal courts. Ultimately, most if not all of the  new proposed rules in the Biden order, will be challenged in the federal courts. Though in the past, federal judges have deferred to the judgment of executive agencies in rule making, federal courts are less deferential to executive branch rule-making in recent years

Ultimately, if  anti-trust law is going to benefit workers, those changes to anti-trust laws need to come from Congress and state legislatures.