As we reported in an earlier blog post, the Federal Trade Commission and Department of Justice issued guidance in the waning days of the Obama administration reminding HR professionals and others that the antitrust laws could apply in the employment arena, particularly with respect to hiring and compensation matters. There was some question about how vigorously the Trump Administration’s antitrust enforcement would be in this area, but those questions should no longer exist. 2018 is already turning out to likely be an important year regarding antitrust attacks on “no-poach” agreements between businesses, with a class being certified in a major damage action and the head of the Department of Justice Antitrust Division indicating last month that criminal indictments based upon such agreements would be shortly forthcoming. Executives and HR Departments should recognize the significant risks associated with express or implied agreements or “understandings”—or even “gentlemen’s agreements”—where businesses agree not to hire (or poach) each other’s employees or executives.
Bruce Sokler is Chair of the Antitrust Section and a Member in the firm’s Washington, DC office. Bruce applies his extensive experience, understanding of clients' business, and judgment developed in his over 30 years in private practice to a broad range of antitrust matters, as well as communications regulation, including associated First Amendment and copyright law matters. He counsels and has represented Fortune 100 companies, not-for-profits, start-up entities, trade associations and domestic and international joint ventures. Bruce has been involved in antitrust matters spanning a broad range of industries, but has particularly deep experience in the communications, health care, and retail industries.
Last week the Federal Trade Commission and the Department of Justice jointly issued guidance to educate companies, and in particular human resource professionals, on how antitrust laws apply in the employment arena, particularly with respect to hiring and compensation matters. Human resource professionals should familiarize themselves with this guidance, which we summarize below, as the DOJ and FTC made it clear that HR professionals may be held individually responsible for certain employment-based antitrust violations.