FTC and DOJ Take Aim at Employers

The Federal Trade Commission and Department of Justice fired a warning shot across the bow of employers last week, announcing their intent to criminally prosecute certain employment-related antitrust violations. In the joint announcement, the agencies put employers on notice that the DOJ intends to criminally investigate naked no-poaching or wage-fixing agreements that are unrelated to larger legitimate collaborations between employers.

According to the agencies, no-poaching and wage-fixing agreements unrelated to larger collaborations are irredeemable and eliminate competition in the same manner as an agreement to fix prices or allocate customers. Under the new policy, these no-poaching and wage-fixing agreements will be treated in the same manner as hardcore cartel conduct. The rationale for the new enforcement policy is to help employees reap the benefits of a competitive market for their services, according to FTC Chairwoman Edith Ramirez.

Both the DOJ and FTC have challenged employment-related antitrust violations in the past. Never before, however, has the DOJ exercised its authority to bring criminal charges. Past enforcement efforts have been filed as civil antitrust violations and have included, for example, a series of high-profile cases brought by the DOJ against technology companies that had entered into no-poaching agreements with their competitors.

The agencies' aggressive enforcement stance was announced on October 20 via the issuance of joint "Antitrust Guidance for Human Resources Professionals" (the "Guidance Document"). Agreements regarding wages, salaries, and benefits, as well as agreements not to recruit certain employees are among the types of agreements that will invite the DOJ's scrutiny. The Guidance Document was prepared for HR professionals, who "need to understand that these violations can lead to severe consequences, including criminal prosecution," according to Renata Hesse, the head of the DOJ's Antitrust Division.

In addition to providing HR professionals with information to help prevent unlawful activity, the Guidance Document also instructs HR professionals on how to report possible antitrust violations. According to the agencies, the benefit of quickly reporting possible violations is eligibility for the DOJ's leniency program, under which corporations can avoid criminal conviction and fines and individuals can avoid prison terms and fines, by being the first to confess participation in a criminal antitrust violation and fully cooperating with the DOJ.

The agencies also published a "quick reference card" for HR professionals that highlights HR situations that are likely to be an antitrust red flag, such as information exchanges among competitors regarding employment information. Although such exchanges cannot be criminally prosecuted, their inclusion in the reference card suggests that the agencies will actively pursue civil charges for such exchanges when they are believed to be anticompetitive.

Key Takeaways

• The agencies' newly aggressive enforcement stance on employment-related antitrust violations should serve as a wakeup call for firms and HR departments;
• The penalty for violations can include criminal prosecution, significant penalties, and imprisonment;
• Although the agencies have provided guidance for HR professionals, the application of the antitrust laws to specific employment situations is fact specific and legally complex;
• Firms should consult with antitrust counsel to review their HR policies in light of the agencies' newly aggressive enforcement stance; and
• Decisions to participate in the DOJ's leniency program also should be made in consultation with counsel.