Within the last year, the U.S. Department of Justice (DOJ) brought its first indictments alleging criminal wage-fixing conspiracies and criminal no-poach conspiracies among competing employers. In December 2020, DOJ indicted the president of a staffing company for violating Section 1 of the Sherman Act by allegedly conspiring with competitors to fix wages paid to physical therapists. A month later, DOJ indicted a corporation for violating the Section 1 of the Sherman Act because it allegedly entered into “naked no-poach agreements,” pursuant to which it agreed not to solicit senior employees of two competitors In March 2021, DOJ filed its second wage-fixing indictment, which also alleged a conspiracy to allocate workers. As reported here and here, these indictments were the culmination of the DOJ’s Policy, contained in its 2016 Antitrust Guidance for Human Resource Professionals (“Antitrust Guidance”) to bring criminal charges against employers who conspired to suppress wages, either through wage-fixing agreements or naked no-poach agreements.
At the time of the second indictment, we explained that the indictments alleged that the wage-fixing and no-poach agreements were illegal per se, which means that the agreements are presumed to be illegal, without any evidence of their anti-competitive impact. We also explained that no case had squarely held that either a wage-fixing conspiracy or a naked no poach agreement was illegal per se and that the law on this issue was...
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