As readers of this blog know, no-poach and wage-fixing agreements are a current hot topic for both civil and criminal enforcement by the Antitrust Division of the Department of Justice.
Our colleague, Stuart M. Gerson has authored a helpful summary of recent history and what’s at stake regarding this topic, in an article published in Bloomberg Law: “No-Poaching Agreements, Wage-Fixing & Antitrust Prosecution.”
The following is an excerpt:
Especially in difficult economic times, companies look for stability and predictability. Hence, while intent upon avoiding litigation charging wage fixing or its close cousin, no-poach agreements, experience suggests that there are companies that might be considering various ways to exchange information related to employment that can be used for “bench marking.”
Such efforts are intended to be lawful means to create and share data that are updated from time to time and that reflect prevailing levels and standards by which companies might be able to intuit what their competitors are doing and therefore can establish market rates and practices which presumably the individual members of the group might adopt.
Although such companies might be concerned only about information exchanges, and not agreements to fix wages or avoid poaching of competitors’ employees, the potential enforcement stance of the Department of Justice simply does not allow for this simplification.