In the past year, the U.S. Federal Trade Commission (“FTC”) and Department of Justice’s Antitrust Division (“DOJ”) have put antitrust enforcement in the employment context at center stage. Last week, those efforts were put to their first true test in trials in Texas and Colorado—where juries failed to convict any defendant of wage-fixing, unlawful no-poach agreements, or any other antitrust violation. But employers should not rest easy; the DOJ has already confirmed that it is undaunted. And both the DOJ and FTC appear ready to bring novel enforcement actions against agreements and consolidations that allegedly restrain competition in labor markets.[1] These developments, should put employers on high-alert to ensure that their hiring, recruitment, non-compete, and employee classification and compensation policies and practices conform with antitrust laws.
Wage-Fixing, No-Hire, No-Poach, and Non-Solicit Agreements
For more than five years, following the DOJ and FTC’s 2016 “Antitrust Guidance for Human Resource Professionals,” the DOJ has been vocal about its intent to criminally prosecute “naked” wage-fixing and no-hire, no-poach and non-solicit agreements between horizontal competitors.[2] This intention has become reality over the past 18 months, with a number of criminal indictments against both companies and individual executives for alleged wage-fixing, no-poach, and non-solicit agreements. Those efforts have now been tested at trial.
Late last week, a jury in Texas...
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