Publications

On October 20, 2016, the Department of Justice (DOJ) and the Federal Trade Commission (FTC) issued joint guidelines for human resources (HR) professionals on the application of antitrust laws to employee hiring and compensation (HR Guidelines). These new guidelines make clear that naked wage-fixing, “no poaching,” and other similar agreements will be treated as per se illegal by the antitrust agencies. According to the HR Guidelines, these agreements will be subjected to criminal liability and they will be investigated and prosecuted no differently than any other hard core cartel conduct (e.g., price fixing, bid rigging). At the same time, the HR Guidelines recognize that agreements not to poach a competitor’s employees that are connected to or are reasonably necessary to a larger legitimate collaboration such as a joint venture between the employers will not be considered per se illegal. The HR Guidelines also address potential antitrust sensitivities arising from exchanges of information, such as the terms and conditions of employment, and the circumstances under which such exchanges may result in antitrust violations.