Each week, FP Weekly members receive a practical and cutting-edge checklist of issues to consider, action steps to take, and goals to accomplish to ensure you remain on the top of your game when it comes to workplace relations and employment law compliance. This week we provide you a checklist of red flags that could land your organization (and you) in antitrust trouble, and a companion checklist of best practices to keep you compliant.
Why the Renewed Focus on Antitrust Compliance
In today’s economy, H.R. professionals and in-house counsel are faced with numerous challenges, including providing competitive wages and working conditions while at the same time trying to control costs and reduce turnover. Now you need to add avoiding employment-related antitrust violations to the list of issues that require your in-depth attention.
As highlighted in recent Insight articles we have recently published, federal antitrust authorities have stepped up their enforcement activities against restraints in the labor market, including wage fixing and no-poach agreements.
Employers that compete to attract and retain employees are “competitors” from an antitrust perspective, even if they do not offer the same products or services. It is unlawful for competing employers to agree to limit or fix the terms of employment – and recent events have placed a greater spotlight on such behavior.
Following the successful criminal prosecution of a staffing company, U.S. Attorney Jason Frierson for the District of Nevada recently stated that “protecting workers from antitrust schemes – such as wage-fixing and employee allocation – remains a priority.” He also noted the U.S. Attorney’s Office is “committed to working with the Antitrust Division and FBI to prosecute anticompetitive conduct that affects opportunities for workers and the labor market.” Depending on the facts of the case, the Department of Justice (DOJ) could criminally prosecute individuals, the company, or both. Additionally, because the Sherman Act provides for treble damages for injured parties, there is an active plaintiffs’ antitrust bar that is seeking to file lucrative class action lawsuits immediately after any DOJ indictment.
In light of this new enforcement reality, business professionals of all types should exercise caution to ensure that their companies are not engaging in any conduct which could be deemed in violation of antitrust laws. The risks can emanate from your staffing teams as well any other manager who might impact a hiring or compensation decision. Here is a checklist of red flags to be on the lookout for throughout your organization.
Red Flags
Best Practices
While these new risks may seem daunting, there are several steps you should consider to reduce the risk of potential antitrust violations. These actions should become an integral part of your compliance environment and need to be reinforced on an on-going basis to be most effective.
