The Department of Justice issued new guidance to human resources professionals in October that may indicate the DOJ is looking at employee compensation and hiring practices as avenues for criminal antitrust violations.
The guidance specifically cautions human resources professionals to avoid agreements with competitors to limit or standardize the terms of employment for potential new hires. According to the guidance, that includes limiting salaries or wages, benefits, job opportunities or “poaching agreements” for new hires among multiple employers. The guidance also offers benefits to the first employer that identifies collusive hiring agreements among apparent competitors.
A federal antitrust action against employers could arise if employees or prospects could prove that multiple employers entered into a universal agreement to limit the terms of employment for workers they’d normally compete to hire. In the past, the DOJ pursued civil remedies against major technology employers including Google, Apple, Intuit, Intel, Adobe and Pixar for these practices, but the new guidance clearly says that the DOJ will shift its enforcement strategy to include criminal antitrust penalties against individuals or corporations who engage in anticompetitive hiring practices.
In the guidance, the DOJ likened wage fixing and no-poaching agreements to cartel behavior among companies that are competing for employees with particular skill sets. According to the DOJ, such practices do not justify normal business interests like cost containment or cost reductions, increased efficiency or increased business opportunities. They are mainly used to deprive employees of the ability to negotiate and to create disincentives for them to move to a different employer. The DOJ wants to classify these practices as “per se” violations of anti-trust laws. A “per se” violation of a law is one where the court accepts without hard proof that an action is absolutely and obviously harmful.
Treating collusive hiring practices as criminal has not yet been tested in court, so it’s not possible to say that a federal judge would agree that anti-competitive hiring practices constitute a violation of criminal antitrust statutes. Nonetheless, it’s clear that Human Resources professionals will be in the DOJ crosshairs should the opportunity arise.
Los Angeles Antitrust Attorney
If you’ve been accused of criminal violations of antitrust, attorney Robert Helfend is ready to take your case. Mr. Helfend has more than 30 years of criminal defense experience in both state and federal courts. Antitrust prosecutions are long and intense. The stakes are high and get higher as time goes on.
In the past 25 years, the DOJ has doubled the number of annual antitrust prosecutions and has tripled the average criminal antitrust sentence. Don’t risk your freedom on an inexperienced antitrust attorney!
Contact Robert Helfend or call toll-free at (800) 834-6434, (310) 456-3317, (818) 591-2809 or (805) 273-5611 for an immediate consultation on your Los Angeles County antitrust case.
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