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DOJ/FTC Issue Antitrust Guidance for HR Professionals

The Antitrust Division of the Department of Justice (DOJ) plans to begin criminally investigating and prosecuting employers who enter wage fixing and anti-poaching agreements with their competitors. In advance of its new push, the DOJ – together with the Federal Trade Commission (FTC) – issued guidance targeted at Human Resources (HR) professionals, who often make hiring and compensation decisions at their companies, or are at least in a unique position to identify and prevent violations.

The DOJ and FTC jointly enforce U.S. antitrust laws, which prohibit certain restrictions on competition. Historically, the DOJ has prosecuted practices such as price fixing among competitors, or agreements between competitors to set the same price for a particular good or service. Now, the DOJ intends to investigate and prosecute agreements between “competing employers to limit or fix the terms of employment for potential hires.” In short, employers entering wage fixing or anti-poaching agreements with other employers risk criminal prosecution for antitrust violations.

The burden may now be on HR professionals to help ensure legal compliance, in part because the DOJ and FTC claim HR professionals are often in “the best position to ensure their companies’ hiring practices comply with the antitrust laws.” HR professionals have been tasked with implementing antitrust safeguards and preventing inappropriate discussions and agreements with competitors. The Antitrust Guidance for Human Resource Professionals (the Guidance) provides a deeper explanation of the relevant laws, potential violations and best practices for avoiding liability. A complete copy can be found here.

The following have been specifically identified by the FTC and DOJ as examples of “Antitrust Red Flags” for HR professionals:

Agreements with other companies about employee salaries, compensation, or other terms or conditions of employment;
Agreements with other companies regarding hiring/soliciting their employees – or even expressing a desire to avoid aggressive competition for talent;
Sharing information about employees’ compensation, or other terms or conditions of employment, with another employer;
Participating in a meeting or discussion in which the foregoing topics are discussed;
Discussing the above topics with peers from other companies – including during non-professional social events; or
Receiving data about another company’s employees’ compensation.

For more Antitrust Red Flags click here.

Based on the Guidance, employers should expect expansive interpretations of existing antitrust laws. HR employees in particular should take heed as they have been specifically identified as individuals in positions of authority with respect to hiring and compensation decisions, and are likely to stand on the front lines if their company is the target of an investigation.


© Copyright 2020 Armstrong Teasdale LLP. All rights reserved National Law Review, Volume VI, Number 311


About this Author

Jovita M. Foster, Armstrong Teasdale Law Firm, Labor Law Attorney

Jovita Foster is an accomplished litigator working with small- to medium-sized businesses, public utilities, and Fortune 100 and 500 companies in all facets of employment and labor law.

In state and federal jurisdictions and in front of the Appeals Tribunal, Jovita defends employers and managers in disputes involving claims of discrimination, retaliation, violations of public policy, sexual harassment, wrongful termination, and unemployment appeals. She successfully defends employers and managers in arbitration. Jovita also represents broker-dealers in...

Falon Wrigley, Employment, Labor, Attorney, Armstrong Teasdale Law Firm

Falon Wrigley, a member of the Employment and Labor group, represents management in litigation and provides practical, sophisticated advice aimed at resolving complex legal problems unique to the workplace.

On the litigation side of her practice, Falon defends and advises employers with respect to state and federal employment laws, such as Title VII of the Civil Rights Act of 1964 (Title VII), the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), and the Americans with Disabilities Act (ADA) – as well as their state law equivalents.  With a deep knowledge of employment law policies and an eye on the ever-changing economic reality, she routinely handles administrative charges and litigation in connection with claims of failure to hire, wrongful termination, discrimination and harassment, breach of employment and separation agreements, and alleged wage and hour violations.  By following the maxim that “the best defense is a good offense,” Falon works to put clients in the driver’s seat whenever a dispute arises.