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ARTICLE · 25 APRIL 2023

Is It Still Safe To Exchange Wage And Other Compensation-Related Information?

Lowenstein Sandler LLP
Lowenstein Sandler LLP
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Since the mid-1990s, human resource (HR) professionals (and those advising them) have relied on the Department of Justice (DOJ) and Federal Trade Commission's (FTC) "antitrust safety zone" articulated...

United StatesEmployment and HR
Zarema A. Jaramillo
Zarema A. Jaramillo
Jonathan L. Lewis
Jonathan L. Lewis
Jack Sidorov
Jack Sidorov
Joshua E. Morris
Joshua E. Morris
Sydney J. Kaplan
Sydney J. Kaplan

Since the mid-1990s, human resource (HR) professionals (and those advising them) have relied on the Department of Justice (DOJ) and Federal Trade Commission's (FTC) "antitrust safety zone" articulated in Statement 6 of the Statements of Antitrust Enforcement Policy in Health Care (1996 Statements). Statement 6 provided a degree of comfort that they would unlikely violate antitrust laws when participating with competitors in surveys exchanging competitively sensitive information (wages and other compensation-related information, for example) if they complied with certain "conditions"–"absent extraordinary circumstances."

In February, the DOJ announced the withdrawal of a number of "outdated" enforcement policy statements, including the 1996 Statements. In a speech announcing the withdrawal of these statements, Doha Mekki, the DOJ's Principal Deputy Assistant Attorney General at the Antitrust Division, commented that the statements no longer "fully reflect market

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