Competition authorities crackdown on employment markets

Jason Frierson, US Attorney for the District of Nevada (where the plea was secured), added that:

“Protecting workers from antitrust schemes – such as wage-fixing and employee allocation – remains a priority for the U.S. Attorney’s Office”.

This conviction is built on a foundation first laid by the DOJ and the US Federal Trade Commission (FTC) in October 2016 in joint antitrust guidance issued by the agencies for “human resources professionals.” In this guidance, the US antitrust agencies put employers on notice that the DOJ would treat “naked” no-poach and wage-fixing agreements between employers (e.g. agreements that are separate from or not reasonably necessary to a larger legitimate collaboration) as per se unlawful. This joint guidance further warned that the DOJ intended to bring criminal prosecutions. While it took six years from issuance of that HR guidance for the DOJ to secure its first guilty plea in a no-poach case, the US antitrust agencies across two successive presidential administrations have kept the message consistent: antitrust violations in the labour markets will not be tolerated.  

This development reflects a growing recognition that antitrust has a role to play in protecting employment markets and is leading to increased enforcement by competition authorities around the world against behaviours such as agreements between employers not to poach or solicit one another’s employees, or to fix salaries or other terms of employment. This development heralds a new era of cartel enforcement, looking into employment practices that have to date been largely untouched.

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