Industry Surveys and What to Keep Private

Why this matters

Every owner wants to know whether their tech pay is competitive and whether their average ticket is low. A good industry survey answers that, and it is one of the most useful things an association does. A bad one, or a good one misused afterward, is a channel for competitors to learn each other's current prices and wages, which is what antitrust law treats as the raw material of a price-fixing or wage-fixing case. The difference is almost entirely in how the survey is built and what participants do with it, and both are decisions a shop owner makes.

The general legal line for owner groups, including why price and wage agreements are per se illegal, is owned elsewhere (see related: Antitrust Lines for Associations and Owner Groups). This card is about surveys and the information around them. This is not legal advice.

Why an exchange can be illegal even without an agreement

The per se rules cover agreements. A survey is not an agreement on prices or pay, so courts judge an information exchange under the rule of reason: does it, in that market, tend to reduce competition? The Supreme Court held in United States v. Container Corp. (1969) that competitors in a concentrated market who swapped current price information on request violated Section 1 of the Sherman Act, because the exchange tended to stabilize prices even with no agreement to fix them. In Todd v. Exxon Corp. (2d Cir. 2001), a court let a class of employees proceed on a claim that a group of employers exchanged detailed, current salary information in a way that held pay down.

Two things follow for a small shop. An exchange that is lawful in a national market of thousands of firms can be risky in a metro with six shops in one trade. And an exchange can also become evidence of an agreement, which is the per se problem, if prices or pay move together after it.

The structure the agencies used to bless, and why it is still the floor

For about thirty years, the Department of Justice and the Federal Trade Commission gave a specific shape for an exchange they would not normally challenge. It came from Statement 6 of their 1996 health care enforcement statements and was echoed in their 2016 guidance for HR professionals. Under it:

1. A third party manages the survey: an association's staff, an accounting firm, a consultant or a university, never a participating competitor.
2. The data is historical: more than three months old when it is shared.
3. Each published figure rests on at least five participants, and no single participant's data is more than 25 percent of any statistic on a weighted basis.
4. The results are aggregated so that no recipient can identify any individual firm's prices or pay.

The DOJ withdrew those statements in February 2023 and the FTC followed in July 2023, saying the safety zones were outdated, partly because modern data tools make it easier to back individual figures out of aggregates. The agencies' later guidance on business practices affecting workers, issued in January 2025, also addresses information sharing; check its current status on the agencies' sites before relying on it. So there is no longer a numerical safe harbor. Associations and their counsel still treat the four features as the minimum, because each one blocks a specific way an exchange harms competition, and a survey missing any of them is hard to defend.

What each feature prevents:

Note what none of them can stop: participants talking to each other about the results afterward. That part is on you.

What a shop never shares with a competitor directly

Inside or outside a survey, a shop does not tell another shop in its market any of these, in a meeting, a group text, a phone call or a "just between us" conversation at a supply house counter:

• Current or planned prices, including service call fees, trip charges, diagnostic fees, hourly rates, flat-rate book multipliers, maintenance plan pricing, discounts and surcharges.
• Planned changes to any of those, and when they take effect. Announcing a planned increase to a competitor is the classic invitation to match.
• Current or planned pay: wage rates, raise budgets, bonus formulas, signing bonuses, benefits.
• Bids: what you bid or plan to bid on a specific job or contract.
• Customers and territories: who you serve, which builders or property managers you are pursuing, where you are or are not working.
• Margins, costs and capacity plans in a form that reveals your pricing.

What you can talk about freely: the trade itself, safety, code changes, training, suppliers' public announcements, hiring pipelines in general terms (not each other's employees), and anything already public, like a price you post on your website for customers. Posting a price for customers is lawful. Sending that same price to a competitor with a note about where you think the market is heading is not the same act.

A worked example: a state association's wage survey

A state contractors' association runs an annual wage and benefits survey for its residential members. It hires an outside accounting firm to collect and analyze the data. Participating shops submit pay data for the prior calendar year in February, through the firm's portal, directly to the firm. The association's staff never see individual submissions. The firm publishes a report in May, so the newest data in it is at least four months old.

Thirty-four shops participate. The firm's written rules, approved by the association's antitrust counsel, are: report only the 25th, 50th and 75th percentile hourly rates for each job category in each region; suppress any cell with fewer than five firms; and suppress any cell where one firm accounts for more than 25 percent of the employees counted.

Three cells from the North region show how the rules work:

• Service technician, North. Eleven firms report 38 technicians. The largest firm reports 8 of them, which is 8 of 38, or about 21 percent of the cell. Five or more firms and no firm over 25 percent: the cell is published as three percentiles.
• Lead service technician, North. Seven firms report 22 lead techs, but one large firm employs 9 of them, which is 9 of 22, or about 41 percent of the cell. A rival who knows that firm is big could read the 75th percentile as roughly that firm's rate. The cell fails the 25 percent rule, so it is suppressed and the data is folded into a statewide figure.
• Install helper, North. Four firms report helpers. Fewer than five firms: suppressed and folded into the statewide figure.

So of the three cells, one is published as reported and two are folded into statewide numbers.

An owner of a nine-person shop in the North region gets the report and finds her service techs' pay sits just under the regional median. She uses that, with her own turnover data, to set a new pay band for her shop. That is the use the survey exists for, and nothing about it involves another shop.

The trouble comes a week later. Another participating owner, a friendly competitor, texts her: "Our lead techs were the top of that range in the survey. Where were yours?" The survey was built so neither of them could know the other's number. Answering would hand him exactly the firm-specific, recent wage data the survey's design withheld, and it would do it directly between competitors. It would also undo the suppression of the lead tech cell, which existed because one dominant firm's number could be backed out.

She replies: "Can't get into our numbers, the whole point of the survey is that it's anonymous. Happy to talk about the apprenticeship program though." She saves the exchange. She does not need to report a single text, but if he pushes, or if he proposes anything about pay, she stops responding on the subject and tells the association's executive director, who will involve counsel.

What would change the analysis: if the survey had been collected by one of the participating owners in a shared spreadsheet, the firm-level data would be visible to a competitor, and the third-party feature would be gone before any results were published. Her shop should decline to participate. If it had collected current-quarter prices rather than prior-year wages, the historical feature would be gone. And if the region had only six shops in the trade, even a five-firm cell could identify nearly everyone, so the firm and counsel would need coarser regions or statewide-only reporting. A survey that passes every one of the old numbers can still be a problem in a market small enough; the numbers were never a substitute for counsel's judgment about the market.

Price surveys are a harder case than wage surveys

Wage surveys at least have a well-understood use: setting your own pay. A survey of current local prices has much less use that does not run through competitors adjusting toward each other. Many associations will not run local price surveys at all.

Operational benchmarks are different and more common: average ticket, close rate, callback rate, revenue per technician. National benchmark studies run by an independent firm with hundreds of participants and published as broad ranges are lower risk than a local survey, but average ticket is a price-related figure, and its risk rises as the geography shrinks. The same four features apply, and so does counsel review.

When to stop and get a lawyer

Before your shop participates in, organizes or helps design any survey that touches prices, fees, margins, wages or benefits, ask who collects the data, how old it will be, how many participants back each figure and whether one firm can dominate a figure, and whether counsel approved the method. If you cannot get clear answers, do not submit.

Call an antitrust attorney, and bring the survey instrument, the collection agreement, the participant list and any communications about it, if a competitor proposes collecting data themselves, if results are being discussed among participants, or if prices or wages in your market start moving together after a survey or a meeting.

References

• Sherman Act, Section 1, 15 U.S.C. 1
• United States v. Container Corp. of America, 393 U.S. 333 (1969)
• Todd v. Exxon Corp., 275 F.3d 191 (2d Cir. 2001)
• U.S. Department of Justice and Federal Trade Commission, Statements of Antitrust Enforcement Policy in Health Care (1996, withdrawn 2023) and Antitrust Guidance for Human Resource Professionals (2016)
• See related: Antitrust Lines for Associations and Owner Groups