To hire or not to hire: U.S. cartel enforcement targeting employment practices

1. In October 2016, the Antitrust Division of the Department of Justice (“DOJ”) and the Federal Trade Commission issued joint guidance (the “Guidance”) announcing the DOJ’s intention to thereafter—and for the first time—criminally prosecute “naked” no-poach and wage-fixing agreements. [1] A no-poach agreement exists among companies that agree not to compete for each other’s employees, such as by not soliciting or hiring them, whereas wage-fixing concerns an agreement on employees’ salary or other terms of compensation, either at a specific level or within a range. Notably, such agreements can exist among companies that compete to hire and retain employees, even where they do not otherwise compete in the market to sell products or services. For this reason, the potential for antitrust liability