In recent years, the Department of Justice (“DOJ”) has become increasingly concerned about unlawful no-poach and wage-fixing agreements between competitors that seek to regulate the terms of employment for employees. The DOJ warned employers that it would scrutinize these agreements. In 2020, the DOJ has made good on its promise with the first criminal indictment regarding a wage-fixing agreement (United States of America v. Neeraj Jindal) and in 2021, the first criminal indictment regarding a no-poach agreement (United States v. Surgical Care Affiliates, LLC and SCAI Holdings, LLC). This blog post clarifies the types of agreements that may trigger scrutiny by the DOJ under antitrust laws and reviews the 2016 Antitrust Guidance for Human Resource Professionals issued by the DOJ.

No-Poach and Wage-Fixing Agreements

There are two types of agreements at issue: no-poach agreements and wage-fixing agreements. No-poach agreements occur when competitors agree not to hire or recruit one another's employees. Such agreements may violate antitrust laws because they prevent employees from competing in the labor market and negotiating better terms of employment. Wage-fixing agreements are between competitors to limit or fix the terms of employment. An agreement may violate antitrust laws if it constrains individual decision-making with respect to the terms of employment, such as wages, salaries, and benefits. A wage-fixing agreement may also violate antitrust laws if it affects the...

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