Antitrust Enforcement of No Poach/Wage Fixing Agreements Has Accelerated: Managers and Human Resource Professionals Should be Aware of The Enhanced Criminal Penalties for These Types of Agreements

R. Mark McCareins, General Counsel, Metals Service Center Institute

Historically, when it came to antitrust enforcement, human resource (now commonly referred to as the ‘Talent Acquisition or ’Human Capital’ ) professionals were usually last on the list to receive any sort of antitrust compliance training. All that should have changed in 2016 when the Antitrust Division of the U.S. Department of Justice (”DOJ”) released its first round of guidance for human resource professionals. For maybe the first time in the long history of Section 1 of the Sherman Act, the human resource arena became a target for antitrust lawsuits. While that 2016 DOJ shot across the bow did receive some notoriety, a relatively passive, civil enforcement track record kept the application of antitrust to employment issues on the back burner. Enforcement efforts , either civil or criminal, of labor market restraints are clearly now on the front burner of the FTC, DOJ, state attorney generals as well as private plaintiff counsel.