Heightened Antitrust Scrutiny of Employer Conduct in Labor Markets to Come

Heightened Antitrust Scrutiny of Employer Conduct in Labor Markets to Come


By: Bernard (Barry) A. Nigro, Jr., Nathaniel Asker, Aleksandr Livshits

The Federal Trade Commission and Department of Justice announced that they intend to criminally prosecute certain agreements affecting competition to hire and retain talent.  The news was shared in a joint guidance on the application of the antitrust laws to hiring and compensation of employees (“HR Guidance”).  The HR Guidance was followed by a White House notice and a brief from the Council of Economic Advisers supporting the new enforcement initiatives and calling for additional policies to spur competition in the labor markets, including federal and state legislation to ban non-compete agreements for certain categories of employees.  All three notices were a direct response to President Obama's April 15, 2016 Executive Order calling for action to enhance competition in the labor markets.  In light of this increased focus on hiring and compensation, companies should update their internal human resources and antitrust policies and review their current practices to ensure compliance with the HR Guidance.

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