Issue link: http://psai.uberflip.com/i/1010486
W EEKLY EDITION AUGUST 1, 2018 P AGE 4 CONTINUED ON PAGE 5 Hiring and Employment Decisions May Hav e Antitrust Implications for Your Company KOS DOJ CONTINUED FROM PAGE 3 Answer: When it comes to antitrust law and human resources, portable sanitation companies are not your only competitors. Any other firm that wants to hire the same people you do "coun t." The law says agreement among competitors for the same types of workers to set wages or establish a pay scale is an illegal wage - fixing agreement. If you form such an agreement on behalf of your company with your friend or others acting on behalf of the ir companies, you would likely be committing antitrust violations. The DOJ could open a criminal investigation, and if it determines that your agreement is a naked wage - fixing agreement, it could bring criminal charges against you and your company, your friend, and other individuals or companies that participate in the agreement. Participants could also be subject to substantial civil liability. It's also important to understand that merely inviting a competitor to enter into an illegal agreement may be an antitrust violation – even if the invitation does not result in an agreement to fix wages or otherwise limit competition. In antitrust terms, an "invitation to collude" describes an improper communication to an actual or potential competitor that you a re ready and willing to coordinate on price or output or other important terms of competition. For instance, the Federal Trade Commission (FTC) took action after an online retailer emailed a competitor to suggest that both companies sell their products a t the same price, which was higher than either company was charging. The competitor declined the invitation and notified the FTC. Be aware that private communications among competitors may violate the FTC Act if (1) th e explicit or implicit communication t o a competitor (2) sets forth proposed terms of coordination (3) which, if accepted, would constitute a per se antitrust violation. Question: Recently our company owner told me that we now had a "gentleman's agreement" with another company not to try to r ecruit each other's drivers. There isn't a written agreement, and past efforts to hire each other's employees have rarely been successful. Even though I don't think much will come of it, is this okay? Answer: No. An illegal agreement can be oral; it need not be written down on paper. If the no - poaching agreement is naked, that is, separate from or not reasonably necessary to a larger legal collaboration between companies, it is conduct that the DOJ will criminally investigate and may decide to criminally p rosecute, charging companies, individuals, or both. If you stopped recruiting and interviewing candidates from another company due to a gentleman's agreement, you have become a member of that no - poaching agreement and could be subject to criminal liabili ty too. You should take no further action to comply with that agreement, and suggest to your owner that s/he talk to an attorney about this situation. The attor ney will be able to advise the owner as to possible courses of action to correct the situation.