In an October 2016 guidance document, the United States Department
of Justice Antitrust Division (DOJ) and the Federal Trade
Commission alerted human resources professionals to potential
violations of the antitrust laws in hiring and compensation
decisions. The guidance included the announcement that, "Going
forward, the DOJ intends to proceed criminally against naked
wage-fixing or no-poaching agreements." A naked agreement is
one that is not ancillary to a broader, legitimate collaboration
between businesses.
The DOJ's decision to proceed criminally against such
agreements is significant. Although the Sherman Act allows the DOJ
to proceed either criminally or civilly against antitrust
violators, before the guidance was issued the DOJ had treated
agreements between competitors not to solicit each other's
employees as merely civil violations. Following the guidance,
companies and individuals suddenly had to worry about criminal
fines and potential jail sentences for
