Last month, the U.S. Department of Justice (DOJ) and the Federal Trade Commission (FTC) issued joint guidance to human resources professionals, cautioning that they (and their companies) risk violating federal antitrust laws when they agree with competitors to set wages or not recruit each other’s employees. Sounding the alarm, DOJ and FTC made it abundantly clear that illegal “wage-fixing” and “no-poaching” agreements between competing employers could be pursued both civilly and criminally.
We covered this development in our Oct. 27 alert “Raising Red Flags: DOJ and FTC Issue Antitrust Guidance for HR Professionals.” As noted there, the recent guidance follows high-profile settlements involving several Silicon Valley technology companies, resolving allegations accusing them of entering into agreements not to “cold call” (and in some cases not to hire) each other’s employees.
While it is important to consult legal counsel on any agreements that may fall within the guidelines issued by DOJ and FTC, some provisions are less likely to raise competitive concerns. For example:
Additionally, provisions regarding no direct solicitation may not be challenged by DOJ or FTC if they are: