The Obama Administration has made enforcement of the antitrust laws a priority and has aggressively pursued criminal and civil enforcement actions against large corporations for perceived antitrust violations relating to purportedly anti-competitive conduct. That could change after President-Elect Donald Trump takes office on Jan. 20, 2017.
An example of the Obama Administration's aggressive approach to antitrust enforcement came in the form of "guidance" for human resource professionals provided jointly by the U.S. Department of Justice (DOJ) and the Federal Trade Commission (FTC) on Oct. 20, 2016. The DOJ/FTC guidance explains how those agencies intend to apply the antitrust laws to agreements between employers relating to employee hiring and compensation. The information provided in that release has particular significance in the transportation industry, where employers in the motor carrier, aviation and maritime spheres often rely on employment-related agreements when they engage in collaborative activities with other companies.
The guidance explains that the DOJ and FTC view companies recruiting new employees to be competitors of other employers, even if those companies do not compete in the products or services they provide. The DOJ/FTC guidance warned that agreements among employers to restrict competition for employees – such as nonsolicitation agreements or agreements not to poach each other's employees – can have serious consequences, including potential criminal exposure for "naked" agreements unrelated to legitimate collaborations between the companies. By extending potential criminal antitrust liability to the employment area, when the agencies had pursued all prior enforcement in this area only civilly, the October guidance constituted perhaps the most aggressive statement of the agencies' antitrust enforcement intentions in decades.
Based on the approach to the enforcement of the antitrust laws adopted by prior Republican administrations, it is reasonable to assume that the incoming Trump Administration will pursue a less-aggressive approach than we have seen over the past eight years. Although the President-Elect made several statements on the campaign trail about the significant power held by certain companies and the potential need for application of the antitrust laws in those areas, the Trump DOJ may still soften its position with respect to what constitutes an antitrust violation. Given the significance for employers of the DOJ/FTC guidance, however, employers still need to be prepared to navigate this complicated landscape so as to avoid potential serious repercussions.