What employers, HR pros should know about antitrust laws

Recent developments serve as a reminder for Iowa employers and HR professionals to be aware of the antitrust laws when dealing with certain employment issues.

Background

In July 2021, President Joe Biden issued Executive Order (EO) 14036, which affirmed the executive branch’s policy to enforce the antitrust laws. Two aspects of the EO relate directly to employment law:

• The direction that the U.S. Department of Justice (DOJ) and the Federal Trade Commission (FTC) should consider revisions to the Antitrust Guidance for Human Resource Professionals issued in October 2016; and
• The suggestion that the FTC should consider rulemaking to curtail the unfair use of noncompete clauses.

Although neither event has occurred yet, they are on the horizon and should serve as a reminder for Iowa employers and HR pros to be aware of the antitrust laws or face civil or criminal consequences.

No-poaching agreements = restraint of trade

Under current DOJ and FTC guidelines, agreements among competing employers to avoid recruiting one another’s employees are illegal. While the government has taken civil action against no-poaching agreements in the past, we’ve seen recent criminal indictments, too. The DOJ considers the agreements between competitors to be a restraint of trade, and it’s beginning to use the threat of criminal penalties to curtail them.