DOJ’s New Guidance in Anti-Poaching and Wage-Fixing Agreements: What You Should Know in 2017
An advisory publication released October 25, 2016, by the U.S. Department of Justice and the Federal Trade Commission finds antitrust violations in “no-poaching agreements” and wage-fixing agreements between competing companies. The document, titled “Antitrust Guidance for Human Resources Professionals,” makes clear such agreements are per se illegal, even if no action is taken to enforce them and even if no anticompetitive effect results. Any agreement not to hire another company’s employees, and any agreement to set wages, may fall within the guidance’s proscription. Criminal penalties may be visited not only upon a company but also upon its executives and human resources professionals. What’s more, the DOJ and FTC want companies to go one step further and report any such behavior.
In this two-hour LIVE Webcast, a panel of thought leaders assembled by The Knowledge Group will analyze the new guidance and lay out how companies and human resources professionals should respond. This includes implementing training regimens and compliance programs designed to prevent entering into illegal agreements or exchanging sensitive wage-related information with competitors. The panel will also discuss recent developments in litigation and class actions filed resulting from allegations of anti-poaching agreements.
Key topics include:
- Antitrust Legal Framework
- Agreements in Restraint of Trade
- Recruitment and Hiring Policies
- No-Poach and Anti-Raiding Pacts
- Human Resources Training
- Relationships With Agencies and Suppliers
- Criminal and Civil Penalties
James Tierney, Partner
DOJ High-Tech Investigation
- DOJ filed 3 lawsuits involving 7 high tech firms and 2 animation studios
- DOJ asserted agreements not to “cold call,” hire employees or make counter offers were per se violations
- DOJ rejected arguments that agreements were ancillary to legitimate, procompetitive business activities
DOJ/FTC Guidance for HR Professionals
- Intention to proceed criminally against “naked” wage-fixing and no-solicitation agreements
- HR and other executives may be held criminally responsible
- Companies encouraged to report violations under DOJ’s Corporate Leniency Policy
- Companies should adopt effective compliance programs
Antitrust in the Trump Administration
- Expect criminal enforcement of wage-fixing agreements
- Expect investigations of no-solicitation agreements, but criminal enforcement unlikely
- Little legal support for Obama Administration’s radical shift in policy on criminal enforcement of no-solicitations agreements
Tanisha James, Senior Associate
- Brief discussion of the cases/enforcement actions that have led to the focus on anti-poaching/”no cold call” agreements
- 3 civil actions against tech companies
- Highlights of the Consent Judgements coming out of those settlements
- Key guidance regarding no-poaching coming from the DOJ/FTC guidance
- Key guidance against the sharing of compensation information with competitors
- Practical tips for companies in the M&A context in light of the new guidance
Shannon Seitz, Vice President
Analysis Group, Inc.
- Key economic Issues in employment antitrust litigation
- Impact of anti-poaching agreements on employee mobility
- Effect of wage information sharing on compensation
- Use of industry compensation surveys to benchmark compensation
- Firm wage structures and propagation of impact
- Parallels between typical product antitrust class actions and anti-poaching/wage sharing class actions
- Monopoly power : Monopsony power
- Restraint of trade : Restraint of employee mobility
- Price Collusion : Coordination of wages/compensation
- Factors that differentiate anti-poaching and wage sharing class actions from typical product antitrust cases
- Price has multiple components; compensation has multiple components that could differ across firms and positions within the same firm
- Compensation can include non-pecuniary benefits (e.g., daycare on site) or components with varying value (e.g., stock options)
- Total compensation can be non-transparent to other firms and workers
- Presence of unions and bargaining pools
Who Should Attend:
- Employment Lawyers
- Antitrust Lawyers
- In-house Counsel
- Benefits Managers
- Human Resources Professionals
- Other Related/Interested professionals
Jim Tierney is a partner in Orrick’s Washington, DC office. Jim maintains a wide-ranging antitrust practice with a focus on advising and representing clients in government merger and conduct investigations. Before joining Orrick in 2016, Jim was the long-term Chief of DOJ’s Networks & Technology Enforcement Section where he helped shape federal competition enforcement policy in a wide variety of industries, including high technology and financial services markets. In that role, he supervised the teams that filed the U.S. v. Adobe, U.S. v. Lucasfilm and U.S. v. eBay lawsuits challenging anticompetitive non-solicitation agreements among Silicon Valley and other firms.
Jim Tierney is a partner in Orrick’s Washington, DC office. Jim maintains a wide-ranging antitrust practice with a focus on …
Tanisha A. James is a Senior Associate in Cooley’s Antitrust & Competition group. Her practice focuses on helping clients and investors obtain their financial and company objectives by successfully navigating them through the mergers and acquisitions and strategic investment processes, with a specific focus on antitrust and competition issues, to achieve positive outcomes for their businesses, stakeholders and portfolios.
The breadth of Tanisha’s experience comes from years of working collaboratively with clients in high-tech industries, biotechnology healthcare/pharmaceuticals, digital/print media and publishing, computer and cloud solutions, and the internet of things. Tanisha also has significant experience with edtech, fintech, industrial equipment, automotive parts, food, retail and consumer products and sports.
Tanisha is specifically known for her representation and counseling of corporate clients in connection with their complex domestic and international mergers and acquisitions, strategic investments, joint ventures, and government and private antitrust investigations. Her clients regularly entrust her with guiding investors and companies through the HSR merger review analysis and process; negotiating with governmental and private parties; responding to second requests and agency investigations; advocating before the agencies and political bodies; and coordinating antirust defense strategies around the world. She also provides counseling and training on a wide range of antitrust issues such as private equity and minority investments, compliance, distribution and licensing of intellectual property.
Tanisha A. James is a Senior Associate in Cooley’s Antitrust & Competition group. Her practice focuses on helping clients and …
Dr. Shannon Seitz has a broad range of expertise in labor economics, class certification, econometrics and applied microeconomics. She has worked on a series of high-profile antitrust matters involving employment issues, including claims of anti-poaching and wage fixing. Dr. Seitz has authored expert reports and declarations pertaining to employment and class certification litigation. Dr. Seitz was formerly a co-editor at Labour: Review of Labour Economics and Industrial Relations, and has been a principal investigator and co-investigator on grants funded by the Social Security Administration and Social Sciences and Humanities Research Council of Canada. She has published research in the CPI Antitrust Chronicle, International Economic Review, The Review of Economic Studies, and the Journal of Labor Economics. Dr. Seitz received her Ph.D. and masters in economics from the Western University and her business degree from the University of Saskatchewan. Prior to joining Analysis Group, she was an assistant professor of economics at Boston College.
Dr. Shannon Seitz has a broad range of expertise in labor economics, class certification, econometrics and applied microeconomics. She has …
Print and review course materials
Method of Presentation:
Experience in Wage and Hour Laws
NASBA Field of Study:
Personnel/Human Resources - Non-Technical
NY Category of CLE Credit:
Areas of Professional Practice
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Orrick is an AmLaw 50 firm focused on serving the technology, energy & infrastructure and finance sectors. Chambers Global 2016 rates the firm for excellence across 38 transactional, litigation and regulatory practice areas. Founded more than 150 years ago in San Francisco, Orrick today has offices in major markets worldwide. Approximately a quarter of Orrick’s practice is outside the United States, led from offices in the UK, France, Germany, Italy, Switzerland, Belgium, Russia, China and Japan, as well as an affiliated office in Côte d’lvoire. Financial Times selected Orrick as the most innovative law firm in North America in 2016.
About Cooley LLP
Cooley’s attorneys solve legal issues for entrepreneurs, investors, financial institutions and established companies. Clients partner with Cooley on transformative deals, complex IP and regulatory matters, and high-stakes litigation, where innovation meets the law. Cooley has 900 lawyers across 12 offices in the United States, China and Europe. Cooley's antitrust & competition team is recognized as one of the top-tier practices in the area of antitrust by Legal 500, Chambers USA and Global Competition Review. We handle all aspects of antitrust and competition law matters – including counseling, government investigations and litigation – for Fortune 500 corporations, as well as growing companies.
About Analysis Group, Inc.
Analysis Group is one of the largest private economics consulting firms, with more than 700 professionals across 11 offices in the United States, Canada, and China. Since 1981, we have provided expertise in economics, finance, health care analytics, and strategy to top law firms, Fortune 500 companies, and government agencies worldwide. Our internal experts, together with our network of affiliated experts from academia, industry, and government, offer our clients exceptional depth of expertise.