Defending Antitrust Allegations of Wage-Fixing and No-Poaching Agreements

By John Taladay (Baker Botts LLP)

On October 20, 2016, the Federal Trade Commission (FTC) and the Antitrust Division of the Department of Justice (DOJ) jointly issued important new guidance that shifts the DOJ’s policy regarding agreements relating to the hiring and compensation of employees, announcing that the DOJ intends to criminally investigate and prosecute naked employee wage-fixing and no-poaching agreements. This classification of wage-fixing and no-poaching agreements as hardcore criminal violations lacks a basis in case law and ignores well settled principles regarding the establishment of “per se” antitrust offenses, as well as the agency’s own analytical framework for the joint purchasing of inputs.

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