Recent reports of investigations by U.S. antitrust enforcers into hiring practices in the technology and oil industries serve as a reminder to businesses that U.S. antitrust laws apply to hiring practices, not just to sales of products.
Reportedly, the U.S. Department of Justice is currently investigating whether certain technology companies agreed not to poach each other’s employees while the Federal Trade Commission is reported to be reviewing hiring practices at certain oil companies to determine if the companies conspired to depress the wages of some employees through the sharing of salary information. These investigations follow a number of civil cases brought several years ago by registered nurses against hospital organizations asserting that the hospitals shared salary information as a way to reduce wages paid to nurses.
Such allegations serve as a reminder to businesses that they face antitrust risk whenever they attempt to coordinate hiring practices, or share wage and benefit information, with competitors.
Under U.S. law, absent an industry-wide collective bargaining agreement, businesses may not agree with each other on the wages or benefits they will offer to employees. Nor may businesses enter into a naked agreement not to poach each other’s employees, although non-solicitation or non-hire agreements may be permissible in certain circumstances.
Because the antitrust risk depends on the specific factual circumstances involved, businesses considering no-solicitation or no-hire agreements or participating in wage and benefit surveys should avail themselves of experienced legal counsel. A member of the Taft antitrust team can assist in determining whether a particular practice may create antitrust risk.