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RID is committed to compliance with the antitrust laws of this country, which laws prohibitanti-competitive behavior, regulate unfair business practices, and encourage competition in the marketplace.

Neither RID, nor any of its affiliate chapters, member sections, councils, committees, or task forces shall be used for the purpose of bringing about or attempting to bring about any understanding or agreement, written or oral, formal or informal, express or implied, between or among competitors that may restrain competition or harm consumers . In connection with membership or participation in RID, there shall be no discussion, communication, or agreement between or among members who are actual or potential competitors regarding their prices, fees, wages, salaries, profit margins, contract terms, business strategy, business negotiations, or any limitations on the timing, cost, or volume of their services. This includes any RID-related listserv, online discussion groups, sponsored RID social media, RID publications, or other RID sanctioned event, program, or activity.

 

 


 

 

Frequently Asked Questions About Professional Associations and Antitrust Risks

Introduction:  Most association activities are procompetitive or competitively neutral; but antitrust enforcers have always been concerned about the potential for harm arising from the activities of groups made up of competitors.  This document was designed for RID members, committees, task forces, work groups, member sections and state affiliate chapters to help them better understand what they and their groups can do and discuss in light of such antitrust concerns.

Antitrust law applies to all organization, no matter how small or how localized, and the penalties for violating federal or state antitrust laws are severe. Professional association members, as well as professional associations themselves,  need to avoid any activity that might lead to the appearance
that the association members had agreed, even informally, to something that could have an effect on prices, fees, or competition. Many members may not be aware that discussions about fees, rates, and other economic terms can create such an appearance and raise concerns about possible
violations of antitrust law. These concerns come to the forefront when members ask their committees, task forces, work groups, member sections and state affiliate chapters to take action about fees/rates, bargaining positions regarding terms of employment / engagement, etc.  This document is designed to answer some commonly asked questions.

Disclaimer:   The following does not constitute legal advice but instead offers an overview of the highly complex area of antitrust law. Antitrust law is fact-specific and therefore committees, task forces, work groups, member sections and state affiliate chapters cannot rely solely on the general
guidance contained in this document.

Before engaging in any activity that may raise antitrust concerns, RID committees, task forces, work groups, member sections and state affiliate chapters are advised to contact legal counsel to help assess the risks associated with the proposed activity.

1. Why do we need an antitrust policy?

While you may prefer to leave antitrust law up to the lawyers to discuss, it’s important for members of a professional association to know what kind of conduct puts the association at risk. This policy is designed to protect RID and our members, committees, task forces, work groups, member sections
and state affiliate chapters from legal exposure.

According to the Federal Trade Commission (FTC), enforcement of antitrust laws aims to “prevent unfair business practices that are likely to reduce competition and lead to higher prices, reduced quality or levels of service, or less innovation. Anticompetitive practices include activities like price
fixing, group boycotts, and exclusionary exclusive dealing contracts or trade association rules ….”, Professional associations are expected to provide guidance to their members about antitrust law to ensure that any discussions, projects, or work done within the scope of RID is not in violation of
antitrust laws.

2. How is a professional association different from a union?

The key difference between a professional association and a union is that a professional association works to promote the industry/profession as a whole, while a union works to promote the interests of the workers it represents incollective bargaining. This may seem like a difference without a distinction, but it’s important when looking at what activities a professional association can and cannot engage in. While unions actively  advocate for their members’ personal financial interests and specific terms and conditions of employment, professional associations  work to improve public perception of an industry or professional, e.g.,  through the establishment of standards and informing government  decisions. Also, as discussed below, unions have the protection of the “labor exemption” to the antitrust laws.

3. Why can’t the committees, task forces, work groups, member sections and state affiliate chapters engage in collective bargaining on behalf of members?

Price fixing is illegal under antitrust law. Economic competitors cannot come together and agree on a price they will charge for their goods or services. For example, gasoline stations are prohibited from getting together and deciding how much to charge for a gallon of gas. Interpreters in independent practice in a particular market area are viewed as economic competitors. Thus, they cannot agree, through RID committees, task forces, work groups, member sections, or state affiliate chapters, on a price that they will charge for their services.

It is important to note that individual interpreters are always free to set their own rates or decide what rates they will or will not accept. Individual interpreters are also free to access and consider the published rates of other interpreters in setting their own rates.  It is only when they act in concert with competing interpreters that antitrust law comes into play.

Unions have the protection of the “labor law exemption” to antitrust laws and, therefore union members, who would otherwise be viewed as competitors, may engage in concerted activities through their bargaining unit without raising concerns about antitrust violations.  RID and groups acting within its organizational structure are not unions and do not have the benefit of such an exemption.

4. Why can’t the association or its affiliates form a union to collectively bargain for members?

It does not fall within the mission of RID or its affiliates to form or to facilitate the formation of a union to collectively bargain with employers on behalf of employees who are RID members with respect to their terms and conditions of employment.  Interpreters who are members of RID may, obviously, choose to participate in their individual capacities as employees in a collective bargaining process with their employers through a union.  As previously noted, there is an exception in antitrust laws that  allows a group of employees, through their union, to collectively bargain with their employer. Also, it is worth noting in this context that many RID members are interpreters who are independent/freelance contractors who do not have an employee-employer relationship with the entities that contract with them..

5. There is a new interpreter contract in my state. Can the state affiliate chapter warn that interpreters won’t accept work at the proposed rates?

A decision by or on behalf of a group of economic competitors (like the interpreter members of a state affiliate chapter) to explicitly or implicitly threaten to boycott any proposed or existing contract in order to influence the rates set forth in that contract raises very serious antitrust concerns. While there is no clear definition of what constitutes an implicit boycott threat, all members and RID affiliates must be very careful in making statements that might be construed as a veiled boycott threat.

Although it may seem obvious that below-market rates will decrease the pool of interpreters willing to work under a given contract, stating such on behalf of a RID-associated group may still be construed as an implicit boycott threat. If there are interpreters who are willing to accept the proposed contractual rates and/or those stated rates appear to benefit the consumers / providers of interpreting services, the risks of antitrust exposure are even greater.

While the impact of proposed contractual rates on the available pool of interpreter and the Deaf community’s access to services is a logical argument against rates that are perceived by some to be sub-market, statements made by or on behalf of competing interpreters regarding appropriate rates need to be carefully crafted, need to focus upon the consumer’s perspective and not the financial interests of the interpreters, and warrant careful review, including the advice of  counsel prior to dissemination.

6. What can the committees, task forces, work groups, member sections and state affiliate chapters do?

There are several things that RID, through  its member sections, councils, committees, and task forces, and that state affiliate chapters, can do that may relate to rates/fees and other conditions of employment / engagement.  These things must still be done with extreme care and consideration and the antitrust risks associated with them should be assessed prior to implementation.

a. You can petition the government. 

There is an exception to antitrust laws that allows associations and its affiliates to petition government entities, such as state agencies and commissions and legislators, and raise issues that would otherwise trigger antitrust concerns.  The goal of representing RID members before such entities is to improve the information upon which governmental decisions are made.

b. You can collect and share historical price data.

The FTC, a federal agency that enforces antitrust laws, created a safe harbor for collecting and disseminating historical rate/fee information. (A safe harbor is a provision that specifies that certain conduct will be deemed not to violate a given law, in this case antitrust law.) So, if an affiliate chapter, member section, council, committee, or taskforce follows the safe harbor guidelines, it can collect data on rates and fees in the market area and disseminate it to members. Here are some key factors to consider before collecting and disseminating this kind of information:

  • Rate/fee information must be at least 3 months old.
  • The information must be collected confidentially. Interpreters cannot learn what rates/fees other interpreters are charging.   To ensure that raw data isn’t shared among competitors, it would be prudent to work with an outside entity to conduct the survey.
  • When the results are disseminated, there should be no information included that would enable members to ascertain the identity of those charging a specific rate or fee. This is particularly true for listing information by geographic area when there is only one interpreter working in that area.

c. You can communicate your members’ concerns to the appropriate entity.

Affiliate chapters, member sections, councils, committees, and taskforces can communicate members’ concerns to a hiring entity, if extreme caution is exercised. The concerns cannot be communicated in a way that could be construed as an express or implied threat to collectively boycott a particular contract or hiring entity. Any message should be prefaced by an explanation that every member acts independently in the market and that you are not attempting to influence rates or negotiate rates on behalf of your members Show that you understand antitrust law, say “We are not negotiating rates on behalf of our members.”

7. Who can I contact for more information and guidance?

Each affiliate chapter is responsible for retaining and consulting with local legal council for guidance related to antitrust law. A resource that can assist affiliates in locating local counsel is your state Center for Nonprofit Advancement. Please contact info@rid.org if you need assistance locating your local center.

 

Resources

U.S Department of Justice – Antitrust Division

http://www.justice.gov/atr/

Federal Trade Commission

http://www.ftc.gov/enforcement/anticompetitive-practices

Antitrust Guidelines for Collaborations Among Competitors

http://www.ftc.gov/sites/default/files/documents/public_events/joint-venture-hearings-antitrust-guidelines-collaboration-among-competitors/ftcdojguidelines-2.pdf

 

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Do not post queries or information, and refrain from any discussion that may provide the basis for an inference that the members agreed to take action relating to prices, production, allocation of markets, or any other matter having a market effect. Examples of topics which should not be discussed include current or future billing rates, fees, or other items which would be construed as “price”, fair profit, billing rate, or wage level, current billing or fee procedures, imposition of credit terms. Do not post regarding refusing to deal with anyone because of his/her pricing or fees.