Portable Sanitation Association International

JULY 25 2018

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W EEKLY EDITION JULY 18, 2018 A ntit rust Issues and the Portable Sanitation Industry Part I of II on how hiring and employment decisions may affect your business KOS ANTI TRUST CONTINUED FROM PAGE 4 CONTINUED ON PAGE 10 W EEKLY EDITION JULY 25, 2018 of discussions and parallel behavior – may lead to an inference that the individual has agreed to do so. Are there gray areas? Yes. There are sometimes legitimate reasons to share information, such as a joint venture (JV) between companies who might be sharing employees assigned to the JV. Legitimate joint ventures (including, for example, appropriate shared use of facilities) are not considered per se illegal under the antitrust laws. These tend to be few and are bes t entered with assistance from an attorney who can help navigate the many legal and functional complexities of such an arrangement. Naked wage - fixing or no - poaching agreements among employers, whether entered into directly or through a third - party interme diary, are per se illegal under the antitrust laws. That means that if the agreement is separate from or not reasonably necessary to a larger legitimate collaboration between the employers, the agreement is deemed illegal without any inquiry into its compe titive effects. Associations have unwittingly facilitated antitrust violations. In 2007 the DOJ filed a civil enforcement action against the Arizona Hospital & Healthcare Association for acting on behalf of most hospitals in Arizona to set a uniform bill rate schedule that the hospitals would pay for temporary and per diem nurses. That was illegal and resulted in a consent judgment. The Federal Trade Commission (FTC) also brought a case against the Council of Fashion Designers of America and the organizat ion that produces the fashion industry's two major fashion shows for attempting to reduce the fees and other terms of compensation for models. That case resulted in a consent judgment requiring the Council to cease. Tight employment markets have fostered illegal agreements regarding employee recruitment. In the past few years, the DOJ brought three civil enforcement actions against technology companies (eBay and Intuit, Lucasfilm and Pixar, and Adobe, Apple, Google, Intel, Intuit, and Pixar) that entered i nto "no poach" agreements with competitors. In all three cases, the competitors had agreed not to cold call each other's employees. In two cases, at least one company also agreed to limit its hiring of employees who currently worked at a competitor. All th ree cases ended in consent judgments against the technology companies. What this means for portable sanitation. Going forward, the DOJ intends to proceed criminally against naked wage fixing or no - poaching agreements. According to the DOJ, "These types o f agreements eliminate competition in the same irredeemable way as agreements to fix product prices or allocate customers, which have traditionally been criminally investigated and prosecuted as hardcore cartel conduct." Accordingly, the DOJ will criminall y investigate allegations that employers have agreed among themselves on employee compensation or not to solicit or hire each other's employees. And if that investigation uncovers a naked wage - fixing or no poaching agreement, the DOJ may, in the exercise o f its prosecutorial discretion, bring criminal, felony charges against the culpable participants in the agreement, including both individuals and companies.

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