Antitrust concerns aren’t always at top of mind for human resources professionals. However, the federal antitrust agencies, the Federal Trade Commission and Antitrust Division of the Department of Justice, remind us that antitrust law certainly applies to employment decisions.  The agencies recently issued a policy statement, Joint Antitrust Statement Regarding COVID-19 and Competition in Labor Markets, that reminds employers of antitrust danger areas during the pandemic crisis.

For years, the agencies have challenged unlawful wage-fixing and no-poach agreements, anticompetitive non-compete agreements, and the unlawful exchange of competitively sensitive employee information, including salary, wages, benefits, and compensation data. In 2016, the agencies issued Antitrust Guidance for Human Resource Professionals. The agencies intended that guidance to alert human resource professionals and others involved in hiring and compensation decisions to potential violations of the antitrust laws. That guidance highlights two areas for concern. First, the agencies will prosecute agreements among employers not to recruit certain employees or not to compete on terms of compensation. Second, the agencies caution against sharing competitively sensitive information, such as current wage information, among competitors.

In the recent policy statement, the agencies focus that guidance in light of the pandemic crisis.  They are closely monitoring coordination among employers where the coordination may disadvantage workers in certain fields. Recognizing that some collaboration among competitors may be necessary to fight the pandemic and are procompetitive, they will not “tolerate anticompetitive conduct that harms workers, including doctors, nurses, first responders, and those who work in grocery stores, pharmacies, and warehouses, among other essential service providers on the front lines of addressing the crisis.”

Takeaways

• The COVID-19 pandemic presents unique opportunities for companies to engage in procompetitive collaborations, such as joint purchasing arrangements and joint research and development efforts. However, companies must make sure any collaborative effort complies with the antitrust laws.
• The agencies will prosecute agreements between competitors on employment issues, including agreements concerning salaries and wages, compensation and benefits, reductions in force, and not poaching employees.
• They will give particular scrutiny to agreements or other coordination between competitors on employment issues affecting workers on the front line of responding to the pandemic.
• Companies will face many difficult employment decisions over the coming months. We’re prepared to guide you through both the labor and employment issues you regularly address and also the antitrust pitfalls that concern these agencies.