 And I think I'm also interested in the case because it helped precipitate a shift in how antitrust enforcers and scholars think about labor markets. I think it started to undermine the idea that labor markets are generally competitive and lay the groundwork for today's thinking, where it's widely recognized that labor markets are often highly concentrated and that employers engage in all sorts of unfair practices, including no poach and not going to be agreed with. Hello, everyone. Thank you, Gene. Hello, everyone. I'm Leslie Overton. I'm a partner at Alston in Berg. And I'm interested in these issues because it's important for companies that want to be compliant to understand what the law is and understand that they may need to be focused on areas of compliance that historically have been an online spot. And so I also had the pleasure of working with Gene at the Justice Department, although I did not work on this particular matter. But I like this case as an example of how the law can evolve and how it can be bipartisan, too. So because I will talk a little bit later about how some of the things that the Trump administration has done that have continued with the important work that the Obama administration did in this area. So I'm Gene Kimmelman, and President of Public Knowledge. And I want to thank Congressman Saslingi, gentlemen of Saslingi, for the introduction, for coming here tonight. And you are all too kind. I didn't spear dead. I am honored to have been part of a team that led this effort. And I will talk a little bit more later about how this really wasn't remarkable, shouldn't have been remarkable. This was truly the day-to-day work of the Antrust Division when it just does its job and enforces the law and is indifferent to which companies are involved and which CDOs might have been involved. And whether it's a labor or it's a supplier or it's a purchaser or it's a consumer, the focus of the enforcement is really on straightforward understanding when people are abusing the marketplace. So I'll talk a little bit more about that experience and why I think it's important for what is coming with the great work that Chairman Saslingi is leading. Great. That's a great introduction. But I think folks need to learn a little bit more about this case. So I'm going to ask Leslie if you can give us a little summary about what this case was and what it was about. Okay, I'm going to give us a little summary about this case, but I'm also going to throw in a little bit about a couple of other cases. So the case against Adobe, Apple, Google, Intel, Intuit and Pixar was the first that the Obama administration had brought and that was in September 2010. And they settled it at the same time that they filed a case, but it was significant. I think Gene makes an excellent point that it was the division doing their job, but it got a lot of attention. And because these were agreements among these, I suppose, top brand name companies that were led to be anti-competitive and were the anti-competitive agreements were led to go to the highest levels of the companies. And what were the agreements? Well, in terms of Adobe, Apple, Google, Intel, Intuit and Pixar, they had a number of agreements, bilateral agreements. And so one between Apple and Google, one between Apple and Adobe, et cetera, to not cold call each other's employees. And so what do I mean by cold call? So having recruiters calling people who are not necessarily in the market and so top talent at other companies and trying to solicit them to consider another opportunity that could be better paying, could have better benefits, could just be an opportunity for those employees to be competed for. And by having these agreements that there would be no cold calling between these companies that was depriving these employees of the benefits of well functioning labor markets in terms of the education that these folks that had attained, the skill sets that they'd attained. And so when they can't get a call about an opportunity at Apple because Apple has Google on a don't call list and vice versa that is not leading to well functioning labor markets. So that's what the focus really was on for those particular cases. There were some others also. There was a case against LucasFell and where the complaint settlement there was a few months later in 2010. And there that was a little more complicated, it went beyond the no cold calling and there was an agreement, there was a three part protocol. There was an agreement that LucasFell and Pixar would notify each other when making an offer to someone at the end of the firm and there was an agreement that they would not do a counter offer above the initial offer. And so what I find interesting in terms of the LucasFell and Pixar situation is those were arrivals not just in the market for the labor but those arrivals however you cut it as animation studios. And so there it's particularly surprising that folks weren't paying more attention. And then there was another, but that case settled at the same time where the complaint was gone file. There was another case involving eBay and Intuit and that was filed in California in 2012 but it wasn't settled until 2014 so it went into litigation and eventually settled. And there you saw Whitman being involved in emails and the agreements. You saw the founder of Intuit having correspondence saying that he would get on his people to not slip up on the agreement. And just very, very clearly these agreements were going to the highest levels of the organizations and the founder of Intuit was serving on eBay's board. And so somehow he got into his mind that that meant that there should be a no-poach arrangement with eBay because of the board relationship. But that wasn't what the antitrust laws provided for. I'm happy to answer questions but I want to just keep, allow us to keep moving. That's great. Go ahead James. I want to jump in on that. So the thing I said is that it was straightforward. Straightforward in the way it went through it but just to give you a little color of how this plays out. You have a lot of very, very well-known antitrust lawyers coming into the division and this is not uncommon. Basically, without really being specific, saying, you know, this is the way business is done. This is the way things work. Nobody gets hired off of cold calls. This was just kind of the way, so you get a whole broad discussion of what is the culture, what's the way in which this marketplace works. And what you have to do in the antitrust division is dig through all of that and try to understand whether there is a legitimate basis for it. Whether that truly reflects the way everyone behaves. Are we just happening to see five companies documents by chance so you can go out and look at a lot of other documents. And you make sure you get the whole universe of that. And then what you also get is, you know, in employment arrangements there are a lot of different kinds of employment arrangements. And these are very highly technically skilled people and you have to have a lot of different kinds of ways of working with them. They deal with trade secrets, they deal with, you know, patents, a lot of intellectual property. This is really complicated and highly proprietary. We can't have people jumping around. So there's a whole variety of arguments being put out here. When you see it at the tail end and you say, well, that was pretty straightforward. They did this, they did that, they did these things and therefore they broke the law. It never looks that way at the beginning. And the division had to go through all of this. And the other thing I'll just say is in the context, and this was small, but we were well aware that we were doing something that was not entirely typical, as much as it for us was straightforward enforcement of the antitrust laws. The people didn't think that much about labor markets and didn't think that maybe these kind of practices were that big a deal. And maybe with a lot of talk, even then, about what are you going to do about Google and what are you going to do about concentration in the agricultural sector and what are you going to do about healthcare. There was a lot of other competing interests of where you put your resources and where you put your attorneys and economists to really spend their time. There was a commitment to the idea that we needed to be careful about leveraging the marketplace. It was often called monopsony power and that labor was a significant portion of what needed to be considered under the antitrust laws. So even if it was a small president, even if it was not Aligutus, the big space, the idea was to make sure that we were standing for the principles that were really at stake. And there was an understanding that when the government sues in these kind of instances, which is often not fully understood, you're not necessarily going to stop all that behavior in the marketplace. These are individual cases, individual fact patterns very specific to the case. But it was understood and you never get money for doing this. This is like an injunction to stop the behavior. But there was an understanding that this could be valuable to these employees, even if you couldn't undo what had happened, that there's private antitrust. There's state officials who can look at these things. There's the entire labor movement that could become aware that this is something that they can actually pay attention to and that they have legal tools at their hands. So it's not always just about the smallness of the case. It's also about what other opportunities we create for law enforcement down the road. And so those are important pieces of the puzzle. And for the people who work for the system attorney general at the time, there was a strong desire to put down a marker in this area, even if it was quite small. I'll just make another point. One of the issues in all of these cases was the standard. What should the standard be under antitrust law for these types of agreements? Should they be viewed as unlawful per se? So you just look at them and you don't need to get into a big debate. You don't need to get into a heavy analysis because they're really unlawful on their face. Or do they merit a balancing test of their harms and their benefits? And the position that the Department of Justice was taking was that these are naked agreements, anti-competitive agreements that are not the type that are reasonably necessary to a pro-competitive collaboration and where you would say, oh, we've got to have a robust analysis balancing the harms and the benefits. But these should be struck down as unlawful on their face. And I would say that is the position that the Justice Department has continued to take. Although, I will say with one exception, in the franchise context where you've got a provision preventing one franchisee from poaching another franchisee, the Justice Department has taken that as and said, well, that should be the rule of the reason of this balancing test. And so because that is, that should be the balancing test. But other than that, I would say when you're dealing with horizontal competitors for employees, the Justice Department has continued to take this standard position that was done when Jean and Christine Farming and others... The fact that it was a complaint that was filed that has a personally violation of the law is extremely important for what Leslie said. But to be a, and again, people said, why did you settle and why wasn't it criminal and why didn't you go push harder and further? And you know, those are good questions. At the time it was pushing as far as we thought we could to get a settlement where the end result was stopping the behavior and actual internal compliance practices in the companies that were training and follow-up to the highest level that were no less than what we thought we would actually get if we had gone to court. And we weren't sure in court whether it would be deemed per se versus rule of the reason. So there was a risk factor there. So the value of the settlement, when there was never going to be money at stake anyway, was to be able to really lock in the notion that these should be treated as per se level. Great. All right, well I think that's some really helpful framing. But I'm also interested in sort of the result for today. What are sort of the impacts that we've seen now because of this investigation and the settlements and how are workers benefiting or still facing problems today? So I think I'd like everyone to address this one. Someone feels interested to start. I'm jumping quickly. I think one big impact has been on compliance training and on how this is on companies' radar in a way that it was not before. And so that case has led to other cases has led to, again, this emphasis within compliance. So I've got to believe that there are employees who have benefited from better awareness and adherence to compliance in this area. And one thing that the Obama administration did near the end of the administration was they put out guidance that these NOPO agreements can be treated, can be pursued criminally. And that is something that got a lot of attention as well. And so I think there were people who thought that when the Trump administration came in, the Trump administration would back away from that, but they did not. And they dug down on that. They haven't brought any criminal case yet, but they have said that that can teach to be their policy that these could be criminal. Anyone else? Sure. From the enforcement side, there has been significant bark. The Obama administration in 2016 put out the guidelines that Leslie mentioned and Assistant Attorney General Delrahim has affirmed those guidelines and pledged to criminally prosecute wage-fixing among employers. But the action hasn't quite met those promises. So for instance, there was a case at the FTC, I believe it's in the process of settling, involving two therapy staffing companies that conspired with each other to hold down the wages of therapists who work with the companies. And in that case, the FTC agrees with civil settlement in which there are no voluntary penalties and the companies didn't even have to admit wrongdoing. So there's still a big disconnect between the rhetoric and official statements of the agencies and what they're actually doing in practice. Great. I don't want to derail it, but just to respond on sort of what has labor taken any lessons from this case or more organized labor, primarily working in low wage industries, and I think anything they've actually seen and I trust used against efforts to organize among workers or individuals deemed as independent contractors or independent and colluding to kind of create some paper-based pay or something like that. So I think that there is, and you've seen that happen a number of times, I think in Seattle when some drivers trying to organize lobster men in Maine. So there is sort of these two sides of how this tool can be used and I think I have something great with you. That issue can be used more in these instances where if you really look at where the power is held, who actually has most of the power to manipulate the labor market that should be part of the incident. So I actually have another question for you. What are some of the other policies that tech companies are using today? I understand no coach is not as commonly used as we've talked about, but what are some of the other tools that they use to sort of impact workers' mobility? Yeah, so data society is going to look at tech companies primarily as platforms for labor markets, but we also are fully aware of how they are enormous employers themselves. And on the second question of them as tech companies as employers, we've seen this universe of employees within tech really diversify on a number of levels. First of all, I think everyone may have seen that a recent article that showed that over half of Uber's staff are contractors. So that's one way in which that you can really restrict the earnings, the growth potential, the movement by keeping people who are doing the exact same work on the campus as well as off the campus separate and control that. I think something that someone else probably has a ton more understanding of can speak about is non-competes, prevent employees from leaving and going into another group to work for a competitor, which is something that actually is used up and down the wage scale and across all industries, including in industries where issues of proprietary knowledge or highly secretive trade secrets, trademark, whatever is not an issue. And then particularly in certain service industries they use, and this is, I think sometimes it's written, but I think it's more like a non-verbal statement that employees who want more hours have to have open availability. Meaning you have to keep your entire schedule available to one employer. So if that's the case, then you couldn't possibly schedule an evening with another employer because you have to keep all your hours open. So there are different ways that that also occur. In terms of tech companies as sort of platforms or employment, I think that those are less about actual agreements and written documents so much as algorithms which limit the ability of workers to really optimize their opportunities on a platform. So nudges and controls that say if you just drive five more hours or take eight more troops on this platform, you will reach this particular bonus or whatnot. And so it's framed in a sort of a decision that employees make, but there is an algorithm that actually is seeing everything that a call employees on the platform do and so they're able to control the decisions in the movement, which I think this is really about is sort of like our mobility. And it's not just in driving which we're all familiar with but also in cleaning, in care. There's almost an Uber for everything these days. You don't know if they'll be around for real, but right now they are sort of using those algorithmic tools in order to manipulate and move workers. Yeah, I think this is really helpful. You know, we are often looking at how the tech companies are affecting consumers, but they are also, the workers are kind of the consumers of these apps. And so those same sort of like dark patterns about trying to get the consumer to do something are also happening with workers. I think that's really interesting. So I have mentioned the non-compete clauses and I'd love to have Sandy talk a little bit about what are non-compete clauses. Why should we be concerned about them? Sure, so non-compete is often mentioned in the same breath as no-coach agreements, but they are distinct. They are an agreement between an employer and its employees. So non-compete restricts the post-employment freedom of workers and limit what they can do and where they can work after leaving a job. So for example, a non-compete may prohibit an accountant from working as an accountant, including as a solo practitioner in the United States for 18 months after leaving your current job. That's a non-compete example, a hypothetical example of a non-compete. And approximately 30 million workers today are subject to non-competes and there are a few sectors and occupations that are immune from them. So they've been documented among engineers, Jimmy John, sandwich makers, yoga instructors, home health aides, automated speech recognition technologists and Amazon warehouse workers. So they're really present up and down the socioeconomic spectrum. An employee who accepts a position in violation of a non-compete can face legal action. An employer can take the employee to court and prohibit him or her from accepting a new position or starting a business in violation of a non-compete. And I think importantly, even in the absence of legal action, research shows that workers generally comply with non-competes. A few workers consult a lawyer before acquiescing to a non-compete and most workers simply accept them without question and comply with their terms. And I think California is a really illustrative example. California is often held up as a model for how to treat non-compete causes. In general, non-competes are unenforceable in California so an employer can't go to court and enforce one of these agreements against a worker. But even in California, about one in six workers is bound by a non-compete. And so this suggests that employers recognize that the simple existence of a non-compete discourages worker mobility and serves as a method of controlling their workforce. So in other words, under a non-compete, even one that can or won't be enforced, workers are less likely to look for new work and employers are less likely to make them offers. And the empirical evidence, which has really flourished over the past few years, documents that non-competes do restrict employee mobility and that this reduced mobility contributes to lower wages, reduced formation of new businesses and can lock workers into hostile and abusive working requirements, which I think is especially salient at a time when me, too, is gaining currency and attention. So to address this issue, in mid-March, the Open Markets Institute, along with the FLCIO Public Citizen, SCIU and 16 other labor and public interest groups and more than 40 advocates and scholars petitioned the Federal Trade Commission to ban non-competes as an unfair method of competition. The FTC has a clear authority to act. Congress gave the FTC authority to interpret its anti-trust and competition powers. And interestingly and notably, this Supreme Court has validated the FTC's broad policy-making authority. As we explained in our petition, non-competes inflict real harms on workers and lack credible business specifications. So the question in front of us is whether the FTC, as presently composed, is willing to use its power to protect workers from these abusive contracts that rob them of their fundamental freedom to lead. Thank you. So one thing I want to talk about is the way that politics can influence anti-trust. And I think that's an important lesson to learn for our anti-trust lessons from the no-coach case. So Jean, I'm wondering if you can tell us a little bit about the political situation that the Obama administration was facing at the time. So this case was one of a variety that we were looking at at the beginning of the Obama administration and as probably all of you will recall, there were great expectations that the world was going to change with the Obama administration and it was everything from healthcare across to... I mean, the president in the campaign had talked about the need for stronger anti-trust enforcement and so we came in, I'll just say, loaded for bear as much as we could be and what you find is that it's not so easy, it's complicated. There are 400 plus attorneys at the antitrust division, 100 plus economists of some form or another and they smile at you and they generally say, well do what you tell us to do and we will be here when you leave. And they've been through this a lot. Things change some but there's a whole process of what is an investigation and how does it occur and how do you review a merger and so there was a lot of desire to do things and everything from the egg sector to that healthcare sector. Obviously labor was important. We wanted to try to set a standard before being able to actually bring back built gotten gains called discouragement. There were a variety and section two had not been used no monopolization cases and a terrible report from our perspective in the Bush administration. We walked away from it, the IPC joined us. There was a lot of exuberance about doing things and there were investigations started. There was a lot of effort put in, a lot of areas, agriculture across and it is sometimes hard to find the facts that really will make a case. You can find a lot of things that you don't like and that are abuses and even find things that you think are violations of antitrust law that somehow somebody figured out and corrected two years ago when you see them in documents and you're too late. And just a lot of things that really generally never go public but it makes it much harder. And what we found pretty quickly was that with everything we could do we needed a lot more tools, we needed a lot more of an arsenal. We would have wanted to have the White House like fully embrace antitrust and it's like they did the campaign like why haven't you heard that? Well, they were doing healthcare, they were doing not frank, they were doing a lot of things but somehow this had kind of like not elevated to that level. And when you're dealing with heads of other agencies they have different priorities. They have their personalities and their heat. So it just gets really complicated to get a lot of things done. But I'll just say in general there was a desire, there was an enthusiasm, there was enormous efforts put into things that never saw the light of day because we couldn't get a case out of it or we couldn't get the kind of cross agency collaboration to do something. And if I talk about industries like airlines you'll understand the kind of problems we have. Or I talk about concentration and abuses and among agribusiness you might know something about that too. All I can say is that it was never out of a lack of desire to do something but there was often a difficulty of getting to a meaningful finish line. So I'm just going to ask some more questions because I want to give the audience time to ask their questions so start thinking about your questions now. So what's one lesson that you think we should take from this case? We're going to watch the documentary and that'll teach us some lessons but what are some lessons that you think we should take from this? I'll give this one. That folks in organizations need antitrust counseling. They need compliance training because again you see people at the top of these organizations you see jobs and equipment you see these folks who are writing emails or talking about what they did in books it doesn't make... It's surprising on the one hand but it's just important to remember that everybody in an organization needs to know that they're not above the antitrust laws. The lesson I think is the flip side of that which is you're never going to change the marketplace completely in one case with one company or one set of companies this is a long term fight whether it's antitrust or it's other policies or a combination of the two a few companies might get the signal in the message but it will not permeate across the market it takes a lot of effort both within antitrust and then truly across the government to change a lot of these behaviors. So I'm going to start a somewhat critical and maybe provocative note but I think the DOJ was absolutely right to plead the note poaching cases of per se violation what was done by the companies and the executives in that case has been per se legal for decades and arguably since the very early days of the antitrust laws in the 19th century but if you look at the remedies the DOJ accepted a civil settlement in which none of the front doors were even publicly identified and I think this case along with the DOJ's and stated that criminal investigations and prosecutions are the correct response and the Supreme Court has described the illusion of the supreme evil of antitrust and at least against many small-time price fixers the DOJ has been ready and eager to use its full legal arsenal but when Steve Jobs, Eric Schmidt and other leading lights of Silicon Valley engaged in a horizontal conspiracy against workers they did not face these usual sanctions instead they were left off with a warning and not even named and chained by the government and it took a private class action about four years later to reveal these titans were actually at the center of this conspiracy this wasn't something between little managers but involved the highest ranks of Silicon Valley so I think going forward the DOJ in particular has to commit to using its criminal enforcement powers against all polluters against workers and not simply those that are not powerful or not visible otherwise I think this perception will grow that just like in so many other areas of law we have a two-tier justice system being in favor of the elite proponent punishments for the rest of us Okay, well I have no other people's suggestions I think maybe what I'm here to do is sort of provoke your thinking that maybe in this case there was a lot of documentation evidence that this was happening but maybe we should also think about the ways in which it's less visible whether it's through an algorithm whether it's asking employees to have open availability whether it's the fact that we're talking about tech companies and a lot of them are moving towards it the very goal is monopoly and part of how they get that is through their network of apps so Uber wants all of the drivers they want all of the consumers and that has to do with both controlling both sides and to Charlotte's case if you look at most platform companies and tech companies and read the documents they treat everyone as a user of their technology everybody as a consumer there are no workers in those relationships and so maybe that works in this case but I think that there is an importance to also think at the point of this panel to thinking about how we project the labor market and then I guess the last part would be how do we look at the overall effect not just can we follow the trail but is there a way for us to think about the project what does the effect of all of that look like and I say that because maybe no poach is no longer or is less of an issue now but how does and not compete combined with forced arbitration how do these two policies work together to lead to a desired effect even though it may not be clear that that's where it is okay so the last question we're here in the Congressional Visitor Centering Congress so I want to think about what are some priorities that Congress should be looking at some areas for change that we want to encourage Congress to pay attention to so I'm going to just start by saying where's the labor department we're trying to get labor we're trying to get anti-trip where's the labor department we've had an expert agency that's supposed to be taking care of the rights of workers in the marketplace I mean so again this to me is let's use all the tools that we have to really weigh in on these issues and make sure the marketplace is functioning so I think that it's just critical that and Congress has oversight over all of this and it's Congress it can be the White House I mean we were hoping it would be the Obama White House it wasn't they were always there to focus on this but you can use the White House as a bully public to coordinate across government Congress can use that power as well to really push on multiple actions at once because I can't I don't think one thing one thing will do it I'll just say one thing I mean they said these criticism they are totally valid I think it's important two-tier justice is a horrible problem I'll just say in this case one thing that is important to know about criminal case versus civil case is the level of the intent you have to prove it's a much higher burden and again it might have been winnable in that regard I mean we did what we thought was right but I'll just say there was a danger that would have lost those cases completely and that it would never the information about whoever was involved in it would have never come out so that's just a risk factor you have to take into account I'm not trying to defend it as if it's the right answer but could be two answers it's just it complicates the litigation so I certainly agree with Jean that addressing the radical disempowerment of workers is going to be the responsibility of many agencies obviously not limited to the DOJ and FTC by any means but I think both agencies could be doing a lot more and I think Congress has to use its oversight and appropriations power to really compel them to do everything they can and I think Congress through these functions can pressure them to do at least three things first is, as I mentioned earlier bring criminal prosecutions against all employer partels the second is pressure the FTC to ban the price of employment terms such as non-compete clauses and I think the third is the agencies have to start reviewing mergers for their labor market effects not just product market effects so I think before giving the agencies new authority Congress has to get them used to exhaust their present authority great and just one comment I don't really work on federal level so this is not my portrait I come from California which has a very strong local state labor department who has taken up the slack on the federal level they've expanded their role they're willing to prosecute wage theft cases and really go after and not just win but also collect which is a big part of it so I think double the enforcement on the federal level though I think the pro-act which has been introduced is one instance in which workers are trying to build to build some power for things that so that they can make these structural shifts in the fact that the DO department of labor has actually been reversing a lot of the decisions of the Obama administration and the NLRB has been basically denying almost all of the the complaints that have been brought there by workers so it hasn't at least in this administration not been an LI of workers those two agencies have been LI of workers and so the effort is like the other presenters have said have been to appeal to the legislative body in order to get the power is needed in order to shift those dynamics Just like a quick point others have talked about the roles of Congress and the White House and the like and so I'll just make the point that as we saw in these early no-coach cases particularly in the eBay case even with an antitrust you have the federal but you also have state so the state of California had a case and then there were there was private litigation too and so all of those together can create more of a deterrent effect as well rather than just an injunction by itself Okay who is interested to ask a question I have a mic Yes, okay, Congress got the mic back there Don't all jump up There's one Thanks Hi virtually policy council with committee on education and labor and speaking from a congressional level I don't know if you guys have been paying attention but we know the DOL has some oversight in this space but getting the agency to at least even cooperate has been incredibly difficult but I would say this from a broader perspective as we look toward the future of work specifically with the lubrication of the labor market with non-compete misclassification and forced arbitration clauses we can only do both so much as a single as one half of the legislative body of the United States but what are some of the things that you all think we could shed light on looking forward that would be more useful while we may not be able to do the most effective needs right now not having kind of the executive branch what are some of the things you think we could shed light on to kind of put things forward for maybe future administration I just think hearings hearings, hearings, hearings calling people about hearing issues I mean open availability how many people know about open availability I mean that doesn't sound like the kind of thing that everybody out there in the world would think is like the greatest deal for them in terms of jobs right now and you know there's going to be a lot of discussion about different nudges and misuse of algorithms across a whole variety of of realms in the digital marketplace but to have it's always great to have someone give you an incentive to work a little harder or do your job better but how far should you go how far to spare where is it pushing people to actually endanger themselves or work in a way that truly is harmful these are things I think that need discussing and airing and I even wonder if from the employer side maybe if they heard it in the worst light in a congressional hearing they would re-bring some of these policies maybe there are other ways in which they can profit maximize without having to do some of these things I just think that's the way to really try to push the process but you can't fully let us I think maybe what I would say to that is that for a very long time the conversation about labor has revolved around wages and benefits and I think what we're seeing is it's also revolving around more now so than in a long time opportunity like real opportunity mobility time like do you you know in open availability in retail but as a journalist actually you have to have open availability as a journalist as well and I'm sure there's plenty of other occupations through the boundaries of when you work have been stretched so maybe that's part of this discussion of future work is moving it beyond this very small space of how we think about what can be legislated yes absolutely the minimum wage is incredibly important I'm not saying it's not but there are other ways in which you don't get enough hours and no wage really doesn't matter I sleep on with the interest of the committee hard to follow Bergeron which you don't think you are the that is real smooth so a couple things one is I wanted to circle back on your interpretation wrong because Leslie has been a real leader in this area she was the new brief in the Italian colors case and that's you know people are not familiar with that but there are ways involved being a small business where there's clear and effective effects and the news for Reddit just came it has a really great dissent where it basically explains that the company was able to contract around the antitrust laws so to the point that we want private and fortunate to complement public and fortunate that's not possible in the world for employment contracts or the consumer contracts at arbitration clauses so to this point and to the point of public pressure and hearings and the first one was hearing with the CEO of Google and he got the congressman and heard from congressman during the hearing in a very forceful way saying it's not just about transparency it's about access to justice it's not something that it's really important to echo and clarify and say it's not just the issue of blocking people from saying their stories it's blocking people from going to the courts to mitigate the risk altogether and antitrust generally obviously has a huge component with employment so chairman Scott, chairman Nather both introduced legislation to ban forced arbitration in employment contracts following the epic systems case and to clarify in the LRA that it affects the certain activity the other thing I thought would be kind of useful to touch base on is one of the concerns people make about the PQ agreements is oh these are helpful to protect workplace innovations and if I'm training the line please to make hamburgers how dare they go across the street one of the congressmen of course is a California's ban on PQ agreements and it's pretty innovative state so I hope they can talk about this issue too sort of the interplay between robust competition in labor markets and innovation as well and again restoring our justice system so I'll speak quickly to the arbitration point thank you for mentioning that that was the justice department had quit in an amicus brief in the Italian colors case and unfortunately the Supreme Court did not agree with our position I ended up testifying before the senate judiciary committee on that and I was testifying not on the proposed legislation but I was testifying on the brief I was testifying on the four corners of the brief but I think that and I think it the what I like that brief because I think it really teed up the challenges that are created when you have a forced arbitration and in a case like an antitrust case and you've got to get an economist and you can't pool with other people and share those costs who is going to bring that case nobody's going to do that but you've got to arbitrate it and you've got to arbitrate it by yourself and so you're not going to be able to vindicate your rights and I think that was teed up well in that brief and I speaking only for myself I hope that that's an issue that doesn't get just lost and forgotten because I think it's a real loss of antitrust rights for a lot of people I'll wait briefly so in the United States unlike most other developed countries, private enforcement is a key part of the legal enforcement regime especially in antitrust Congress wanted injured consumers, workers and businesses to play a lead role in enforcing the antitrust laws and gave injured parties extraordinary remedy the treble damages action but through arbitration big corporations have effectively immunized themselves from private antitrust suits they can block class actions and then shuttle everything over to arbitration where individuals or individual businesses have to arbitrate on bilateral basis and as Slade mentioned that's rarely going to happen because these cases are extraordinarily expensive and litigated so this term judicial activism is often mandate about and this is really an area where there's been great judicial activism the Supreme Court has taken this very modest statute the Federal Arbitration Act and reinterpreted to give corporations carte blanche to escape private law suits and as I understood your description of the Silicon Valley no-poach case it's sort of like senior executives made these agreements and then the human resource officers were charged with implementing them do you think there's sufficient incentive for the HR officers to come forward as whistleblowers should other incentives be considered like in the false claims act context you have key tam actions with relators who get a bounty is that something that should be considered here it wouldn't hurt to have a whistleblower protection that's for sure I mean I don't know how many people would have been able to identify what's really an antitrust claim as opposed to something else but if people see something that they think is unfair that is inappropriate that their boss is asking them to do I think having broad federal rights to protect people that come forward and present that information yeah I agree with what I was just going to say it's a good point now yeah I agree with what Jean said I think stronger whistleblower protections would be massively valuable but obviously so long as we live in a world of that will employment it's going to be hard for HR people to blow the whistle on the superiors especially people in the C Street level any other question well we're getting pretty close to what I want to start with so I'm not going to ask a final question thank you so much to this wonderful panel I really appreciate you being here and we had a great conversation