On September 12, Andrew Finch, the Acting Assistant Attorney General for Antitrust in the U.S. Department of Justice, confirmed the Trump Administration’s commitment to the criminalization of agreements among companies not to “poach” each other’s employees and agreements on employees’ wages, policies advanced significantly during the Obama Administration.
In his first major speech since his appointment as interim head of the Antitrust Division, AAG Finch’s main message to participants from around the world at a symposium on global antitrust enforcement was that the Trump Administration will not change the core tenet of enforcement against per se illegal agreements among horizontal competitors. AAG Finch praised the consistent application of the rule as a way to develop “clear, predictable boundaries” that help business leaders avoid running afoul of the antitrust laws, thereby promoting “regularity and compliance.” Perhaps surprisingly, he particularly singled out the late Obama Administration’s decision to ramp up enforcement against agreements among employers not to recruit each other’s employees or to fix their common wages. Such agreements had been treated as civil antitrust violations in a series of cases extending back over a decade, but in October 2016, in the final stages of the Presidential election campaign, the Obama Administration’s DOJ Antitrust Division, which has exclusive authority to enforce federal antitrust law criminally, announced jointly with the Federal Trade Commission that, henceforth, such agreements would be treated as criminal violations, for which companies can be fined and individuals sent to jail. At the time some speculated that the decision might have reflected a desire to ensure employee—and not just consumers—benefit from tough antitrust enforcement. Similarly, some might have wondered whether the new Trump administration would share such concerns to the same extent.
AAG Finch’s speech puts those questions to rest. By singling out the policy as an example of continuity, he made clear that the Antitrust Division remains committed to strengthened enforcement. He also reminded his international audience that the rule is not limited to agreements between companies that sell competing products or services. To the contrary, he explained, it applies to companies that compete to hire the same employees.
Helpfully, when initially announcing the tougher enforcement in October 2016, DOJ and FTC also published Guidance to help explain the rules to Human Resources executives and others newly exposed to these criminal risks. AAG Finch cited the Guidance, signaling their continuing utility to human resource professionals and companies moving forward. Although the Guidance fails to address some of the complicated issues raised by the rule, it does offer a strong introduction to the topic.