U.S. Department of Justice building in Washington, D.C.
On April 3, 2018, the Department of Justice's Antitrust Division announced its first challenge to a “no-poaching” agreement—where companies agree not to recruit or hire each other's employees—under the Trump Administration. The settlement that the Antitrust Division reached with the offending companies is noteworthy because the Division opted to treat the companies' no-poaching agreement as a civil antitrust violation even though the Division's guidelines for human resource professionals—which were issued toward the end of the Obama Administration—and recent remarks by its senior leadership team indicated that such agreements would be treated as criminal violations.
This settlement should not be viewed as a retreat from the Antitrust Division's promise to criminally prosecute no-poaching and “wage-fixing” agreements—where companies agree on the compensation (e.g., wages, salary, and benefits) they will make available to current or prospective employees. Nor should this settlement be seen as signaling that the Antitrust Division's current leadership team views no-poaching or wage-fixing agreements as less serious antitrust offenses.
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