As the spotlight on no-poaching agreements continues to grow, employers should take steps to ensure they do not conflict with anti-competition laws.
- No poaching and wage fixing agreements are generally prohibited as per se unlawful under antitrust law.
- In October 2016, the Antitrust Division of the US Department of Justice and the Federal Trade Commission issued “Antitrust Guidance for Human Resource Professionals” and have, thereafter, brought enforcement actions against alleged no poaching and wage fixing agreements; state attorneys general have also been active in bringing civil enforcement actions challenging such practices and entered into numerous consent orders with employers and affiliated parties.
- Any alleged agreements entered after October 2016 may also be subject to federal criminal prosecution.
- Class actions and private lawsuits have increased since the HR Guidance.
- As a narrow exception, antitrust risk may be mitigated for certain procompetitive agreements such as joint ventures or outsourcing agreements, where certain requirements are met (under the ancillary restraints doctrine); legal review can assess whether the requirements are met and the agreement is appropriately tailored.
- Companies engaging in information exchange on HR issues should carefully consider the “safe harbor” guidelines, which help facilitate information-sharing in a procompetitive fashion.
- Recent trends and risk factors are highlighted in the presentation.
Note: This presentation was one of the most popular in the 2019 Technology May-rathon webinar series.