DOJ/FTC ANTITRUST GUIDANCE FOR HR PROFESS IO N A LS
OCTOBER 2016
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technology companies (eBay and Intuit, Lucasfilm and Pixar, and Adobe,
Apple, Google, Intel, Intuit, and Pixar) that entered into “no poach”
agreements with competitors. In all three cases, the competitors agreed not to
cold call each other’s employees. In two cases, at least one company also
agreed to limit its hiring of employees who currently worked at a competitor.
All three cases ended in consent judgments against the technology
companies. The FTC has brought two cases relating to competition for
employment. One was against
Debes Corp. for entering into agreements to
boycott temporary nurses’ registries in order to eliminate competition among
the nursing homes for the purchase of nursing services. The FTC also
brought a case against the Council of Fashion Designers of America and the
organization that produces the fashion industry’s two major fashion shows for
attempting to reduce the fees and other terms of compensation for models.
Both cases ended in consent judgments.
Going forward, the DOJ intends to proceed criminally against naked wage-
fixing or no-poaching agreements. These types of agreements eliminate
competition in the same irredeemable way as agreements to fix product
prices or allocate customers, which have traditionally been criminally
investigated and prosecuted as hardcore cartel conduct. Accordingly, the DOJ
will criminally investigate allegations that employers have agreed among
themselves on employee compensation or not to solicit or hire each others’
employees. And if that investigation uncovers a naked wage-fixing or no-
poaching agreement, the DOJ may, in the exercise of its prosecutorial
discretion, bring criminal, felony charges against the culpable participants in
the agreement, including both individuals and companies.
Avoid sharing sensitive information with competitors.
Sharing information with competitors about terms and conditions of
employment can also run afoul of the antitrust laws. Even if an individual
does not agree explicitly to fix compensation or other terms of employment,
exchanging competitively sensitive information could serve as evidence of an
implicit illegal agreement. While agreements to share information are not per
se illegal and therefore not prosecuted criminally, they may be subject to civil
antitrust liability when they have, or are likely to have, an anticompetitive
effect. Even without an express or implicit agreement on terms of
compensation among firms, evidence of periodic exchange of current wage