On April 3, 2018, the Antitrust Division of the U.S Department of Justice (“DOJ”) announced that it had reached a settlement in a matter involving a “no-poaching” agreement between employers—the first such enforcement action under the Trump Administration.  The DOJ’s pursuit of the matter reflects the Department’s continuing scrutiny of employment and hiring agreements between corporations.

Background on Antitrust Enforcement of Employment and Hiring Agreements Between Companies

Near the end of the Obama Administration, the DOJ Antitrust Division began to take particular interest in examining the employment and hiring practices of large corporations, including no-poaching agreements—that is, agreements between companies not to recruit or hire each other’s employees. As a result of this heightened scrutiny, the DOJ at the time brought a series of civil lawsuits against several large Silicon Valley corporations, alleging that the companies had entered into illicit no-poaching agreements with their competitors. The collective payouts from these civil lawsuits totaled nearly $1 billion.

Subsequently, in October 2016, the DOJ Antitrust Division, along with the Federal Trade Commission (“FTC”), jointly issued comprehensive Guidance for Human Resource Professionals (“HR Guidance”) regarding the application of the federal antitrust laws to hiring practices and compensation decisions. In the Guidance, the agencies identified the following types of agreements between corporations as per se unlawful:

  • naked wage-fixing” agreements: agreements “about employee salary or other terms of compensation, either at specific level or within a range”; and
  • no-poaching” agreements: agreements “to refuse to solicit or hire that other company’s employees.”

The HR Guidance explained that such agreements could be written or unwritten, formal or informal, express or implicit, and they could include one-way communications (i.e. mere invitations to collude).  Notably, the HR Guidance indicated the DOJ’s intention to begin pursuing such improper agreements through criminal prosecutions, in addition to civil enforcement.

DOJ Settlement

In its civil complaint in the current matter—US v. Knorr-Bremse AG and Westinghouse Air Brakes Technologies—the Antitrust Division alleged that the companies “entered into pervasive no-poach agreements that spanned multiple business units and jurisdictions” between the period of 2009 and 2016.  The complaint further alleged that both companies also entered into separate no-poaching agreements with a third competitor that was subsequently acquired by one of the companies.

Under the terms of the settlement, the companies are “prohibited from entering, maintaining, or enforcing no-poach agreements with any other companies, subject to limited exceptions.” The settlement also requires the companies to “implement rigorous notification and compliance measures to preclude their entry into these types of anticompetitive agreements in the future.”

In announcing the settlement agreement, the DOJ noted that, in the present matter, it exercised its prosecutorial discretion to treat the no-poaching agreements as civil, rather than criminal, violations because the companies in question had both formed and terminated the agreements before the DOJ and FTC issued the HR Guidance. The DOJ, however, emphasized its continued intention going forward to pursue “naked” no-poaching agreements via criminal prosecution.

Takeaways

Employers and HR professionals should be aware that both civil enforcement action and criminal prosecutions of wage-fixing and no-poaching agreements are now a high priority for the antitrust enforcement agencies. The DOJ’s Antitrust Division has stated that, as of January of this year, it already has a handful of criminal cases in the works.

It is important to recognize that – for decades – there was virtually no enforcement, no guidance, and no cases addressing this issue. Many companies may have reasonably believed that their formal or informal discussions with their commercial partners was a matter of profession courtesy and was perfectly lawful, only to find out now – after the publication of the DOJ and FTC guidelines – that their conduct may have crossed the line, or may even constitute a criminal offense.

In most cases, these agreements are also not top of mind for in-house counsel or HR professionals, but only get discovered during the course of some other investigation or transaction. For example, it is notable that, in the above-discussed case, the no-poaching agreement that prompted the investigation (and led to the discovery of the numerous other violative agreements) was uncovered during an examination by the DOJ into one of companies’ merger with a third-party competitor.  Consequently, companies contemplating mergers subject to antitrust review are well-advised to address potential antitrust issues—including preexisting wage-fixing or no-poaching agreements—as part of the due diligence process.

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Photo of Colin Kass Colin Kass

Colin Kass is a partner in the Litigation Department and co-chair of the Antitrust Group, and a member of the Firm’s cross-disciplinary, cross-jurisdictional Coronavirus Response Team. An experienced antitrust and commercial litigation lawyer, Colin has litigated cases before federal and state courts throughout…

Colin Kass is a partner in the Litigation Department and co-chair of the Antitrust Group, and a member of the Firm’s cross-disciplinary, cross-jurisdictional Coronavirus Response Team. An experienced antitrust and commercial litigation lawyer, Colin has litigated cases before federal and state courts throughout the United States and before administrative agencies. His practice involves a wide range of industries and spans the full-range of antitrust and unfair competition-related litigation, including class actions, competitor suits, dealer/distributor termination suits, price discrimination cases, criminal price-fixing investigations, and merger injunctions.

Colin also has extensive experience dealing with the Federal Trade Commission and Department of Justice in obtaining clearance for competitively-sensitive transactions and handling anticompetitive practices investigations. His practice also includes counseling clients on their sales, distribution, and marketing practices, strategic ventures, and general antitrust compliance.

Photo of Lloyd B. Chinn Lloyd B. Chinn

Lloyd B. Chinn is a partner in the Labor & Employment Law Department and co-head of the Whistleblowing & Retaliation Group. He litigates employment disputes of all types before federal and state courts, arbitration tribunals (e.g., FINRA, JAMS and AAA), and before administrative…

Lloyd B. Chinn is a partner in the Labor & Employment Law Department and co-head of the Whistleblowing & Retaliation Group. He litigates employment disputes of all types before federal and state courts, arbitration tribunals (e.g., FINRA, JAMS and AAA), and before administrative agencies in New York and across the country. Lloyd’s practice ranges from litigating compensation disputes to defending whistleblower, discrimination and sexual harassment claims. Although he represents employers in a wide range of industries, including law, insurance, health care, consulting, media, education and technology, he focuses a substantial portion of his practice on the financial services sector. He has tried to final verdict or arbitration award substantial disputes in this area.

Due to Lloyd’s litigation experience, clients regularly turn to him for advice regarding the full range of employment matters, including terminations, whistleblower policy and procedure, reductions in force, employment agreements, and employment policies. For example, in the wake of the financial crisis, he has counseled a number of firms through reductions in force and related bonus and deferred compensation disputes. Lloyd has also been retained to conduct internal investigations of allegations of workplace misconduct, including claims leveled against senior executives.

Lloyd has represented global businesses in matters involving Sarbanes-Oxley and Dodd-Frank whistleblower claims. He has taken an active role in the American Bar Association on these issues, currently serving as Co-Chair of the Whistleblower subcommittee of the ABA Employee Rights and Responsibilities Committee. Lloyd has spoken on whistleblowing topics before a numerous organizations, including the American Bar Association, ALI-ABA, Association of the Bar of the City of New York, and New York University School of Law. He has testified twice before Congressional subcommittees regarding whistleblower legislation and has also published blog postings, articles and client alerts on a variety of topics in this area, including the Dodd-Frank Act’s whistleblower provisions. Lloyd is a co-editor of Proskauer’s Whistleblower Defense Blog, and he has been widely quoted by on whistleblower topics by a number of publications, including the New York Times, the Wall Street Journal, the National Law Journal and Law 360.

Lloyd has also become active in the International Bar Association, presenting on a variety of subjects, including: the #MeToo movement, the COVID-19 pandemic and employment law, and cross-border harmonization of employment provisions in transactions. Lloyd also hosts a quarterly roundtable discussion among financial services industry in-house employment lawyers. He has also published articles and given speeches on a variety of other employment-law topics, including non-solicitation provisions, FINRA arbitration rules, cross-border discovery, e-discovery, and the use of experts.

Photo of Laura Fant Laura Fant

Laura Fant is a special employment law counsel in the Labor & Employment Law Department and co-administrative leader of the Counseling, Training & Pay Equity Practice Group. Her practice is dedicated to providing clients with practical solutions to common (and uncommon) employment concerns…

Laura Fant is a special employment law counsel in the Labor & Employment Law Department and co-administrative leader of the Counseling, Training & Pay Equity Practice Group. Her practice is dedicated to providing clients with practical solutions to common (and uncommon) employment concerns, with a focus on legal compliance, risk management and mitigation strategies, and workplace culture considerations.

Laura regularly counsels clients across numerous industries on a wide variety of employment matters involving recruitment and hiring, employee leave and reasonable accommodation issues, performance management, and termination of employment . She also advises on preparing, implementing and enforcing employment and separation agreements, employee handbooks and company policies, as well as provides training on topics including discrimination and harassment in the workplace. Laura is a frequent contributor to Proskauer’s Law and the Workplace blog and The Proskauer Brief podcast.