Issue link: http://psai.uberflip.com/i/1007999
W EEKLY EDITION JULY 25, 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 9 CONTINUED ON PAGE 1 1 P AGE 10 Manage the risk to your company. Avoid sharing sensitive information with competitor s. This means competitors for employees – those who hire drivers, dispatchers, sales representatives, and so on. Any company that hires the same type of employees as you is your competitor in this context. Sharing information with competitors about terms a nd conditions of employment can also run afoul of the antitrust laws. Even if an individual does not agree explicitly to fix compensation or other terms of employment, exchanging competitively sensitive information could serve as evidence of an implicit illegal agreement. While agreements to share information are not per se illegal and therefore not prosecuted criminally, they may be subject to civil antitrust liability when they have, or are likely to have, an anticompetitive effect. In other words, even if the government doesn't prosecute you for antitrust violations, you could lose a civil lawsuit brought by an unhappy competitor. Even without an express or implicit agreement on terms of compensation among firms, evidence of periodic exchange of curre nt wage information in an industry with few employers could establish an antitrust violation because, for example, the data exchange has decreased or is likely to decrease compensation. For example, the DOJ sued the Utah Society for Healthcare Human Resour ces Administration, a society of HR professionals at Utah hospitals, for conspiring to exchange nonpublic prospective and current wage information about registered nurses. The exchange caused defendant hospitals to match each other's wages, keeping the pay of registered nurses in Salt Lake County and elsewhere in Utah artificially low. The case ended in a consent judgment so that registered nurses could benefit from competition for their services. What if I am buying or selling my company? If participants in an agreement are parties to a proposed merger or acquisition, or are otherwise involved in a joint venture or other collaborative activity, there is still antitrust risk if they share information about terms and conditions of employment. However, not al l information exchanges are illegal. It is possible to design and carry out information exchanges in ways that conform to the antitrust laws. For example, an information exchange may be lawful if: • a neutral third party manages the exchange, • the exchange i nvolves information that is relatively old, • the information is aggregated to protect the identity of the underlying sources, and • enough sources are aggregated to prevent competitors from linking particular data to an individual source.