The Department of Justice and Federal Trade Commission recently issued guidance concerning the enforcement of antitrust laws, in compensation and employment related issues, including criminal enforcement. The DOJ/FTC guidance is directed toward antitrust violations that arise in three general scenarios:

  1. Agreements among companies that compete for employees concerning levels of wages or benefits;
  2. Agreements among companies that compete for employees not to poach, recruit, or hire each other’s employees (outside of a bona fide business relationships such as a joint venture); and
  3. Sharing of sensitive employee wage or benefit information among companies that compete for employees, which may be evidence of an implicit agreement to fix wages.

No explicit or written agreement is required for there to be an antitrust violation. The guidance indicates that the DOJ intends to pursue such antitrust violations—particularly those in (1) and (2), which the DOJ considers to be per se violations—with criminal prosecutions.