Your company has trained your sales force not to discuss prices with competitors or engage in anti-competitive conduct, so you have adequately managed the risk of exposing the company to an antitrust enforcement action, right? Not quite. On October 20, 2016, the Department of Justice (DOJ) and Federal Trade Commission (FTC) issued a guidance for human resources professionals that states that agreements among competing employers with respect to hiring, such as agreements limiting or fixing the terms of employment for potential hires or agreements not to "poach" each other's employees, may violate federal antitrust laws.

The DOJ has announced that it will criminally investigate "no-poaching" and wage-fixing agreements between competing employers because such agreements eliminate competition for employees. In the past few years, the DOJ and FTC have taken action against employers that entered into agreements not to hire or poach each other's employees. The DOJ has brought three civil enforcement actions against technology companies (eBay and Intuit, Lucasfilm and Pixar, and Adobe, Apple, Google, Intel, Intuit and Pixel) that agreed not to "cold call" each other's employees. All these cases resulted in consent judgments entered based on an agreement by the parties not to engage in certain employment practices. The DOJ also brought an action against the Arizona Hospital & Healthcare Association for acting on behalf of most Arizona hospitals to set uniform pay rates for temporary and per diem nurses.

The FTC has also started cracking down on agreements that reduce competition for employment. The FTC brought a claim against Debes Corp. for entering into agreements to boycott temporary nurses' registries in order to eliminate competition among nursing homes for the purchase of nursing services. The FTC also brought a case against the Council of Fashion Designers of America for trying to reduce fees and other compensation for models. Both cases ended in consent judgments.