In an October surprise, the DOJ and FTC (collectively, the
"Agencies") released guidance for HR professionals on the
application of the antitrust laws to employee hiring and
compensation. The Agencies' October 20, 2016 release, Antitrust
Guidance for Human Resource Professionals, announced that
"naked" agreements among employers not to poach each
other's employees and to fix wages and other terms of
employment are per se illegal. Critically, for the
first time, the Agencies warn that such agreements could result in
criminal prosecution against individual HR professionals,
other company executives, as well as the company. This
Guidance, coupled with repeated requests to approach the Agencies
to report such agreements, signals a significant shift in
enforcement focus for the Agencies, including a further move to
individual prosecutions, particularly when taken together with last
year's DOJ Yates
Memorandum calling for more emphasis on individual executive
liability.
