This article has been nominated for the 2020 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards.
Over the past few years, antitrust issues in labor markets have emerged as a focal point in regulatory enforcement. In October 2016, following a series of Department of Justice (“DOJ”) investigations and subsequent class actions alleging the existence of “no-poach” agreements among several high -tech firms, the DOJ and the Federal Trade Commission (“FTC”) jointly released the Antitrust Guidance for Human Resource Professionals (“DOJ/ FTC HR guidance”). The DOJ/FTC HR guidance underscores that U.S. antitrust laws apply to competition among employers and warns that “naked” wage-fixing and/or no-poaching agreements—meaning agreements that are “separate from or not reasonably necessary to a larger legitimate collaboration between the employers”—are per se illegal.  The guidance also
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