DOJ guidance clarifies antitrust issues concerning employees

It’s written for the HR crowd, but Finance people would do well to take a look at the new guidance the Department of Justice (DOJ) just released concerning antitrust issues. 

The 11-page document, called “Antitrust Guidance For Human Resource Professionals,” was released by the DOJ’s Antitrust Division in conjunction with the Federal Trade Commission (FTC).

While the guidance doesn’t break any new legal ground, it outlines how agreements with competing employers regarding things like worker pay and benefits can result in antitrust violations.

In addition, the guidance says that agencies may start to press criminal charges against individuals and companies found to have violated antitrust laws.

Example: The DOJ says it intends to proceed criminally against “naked wage-fixing or no-poaching agreements.” It also says it’ll criminally investigate allegations that employers have formed an agreement among themselves on employee compensation or to not solicit or hire each other’s employees.

Traditionally, the DOJ has brought civil charges against companies committing these types of antitrust activities.

The guidance also makes it clear that the federal agencies’ definition of “competitor” in the context of antitrust law is very broad. The guidance says:

From an antitrust perspective, firms that compete to hire or retain employees are competitors in the employment marketplace, regardless of whether the firms make the same products or compete to provide the same services.

Red flags

In addition to the guidance, the FTC has provided a quick-hitting guide to the red flags federal agencies look for when seeking antitrust violations.

The FTC says antitrust concerns arise of an individual or the person’s colleagues:

• “Agree with another company about employee salary or other terms of compensation, either at a specific level or within a range.”
• “Agree with another company to refuse to solicit or hire that other company’s employees.”
• “Agree with another company about employee benefits.”
• “Agree with another company on other terms of employment.”
• “Express to competitors that you should not compete too aggressively for employees.”
• “Exchange company-specific information about employee compensation or terms of employment with another company.”
• “Participate in a meeting, such as a trade association meeting, where the above topics are discussed.”
• “Discuss the above topics with colleagues at other companies, including during social events or in other non-professional settings.”
• “Receive documents that contain another company’s internal data about employee compensation.”