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Do Your Employment Practices Violate Antitrust Law?

By Robert G. Brody and Alexander Friedman

Did you know that certain employment practices could violate antitrust law? This is the message to be gleaned from joint guidance recently issued by the Federal Trade Commission (FTC) and the Department of Justice (DOJ) Antitrust Division (collectively, the “Agencies”). The Agencies issued this guidance to remind employers that, like any other market, the job market is subject to antitrust laws. Not only could failure to abide by the antitrust laws result in significant civil penalties, but criminal prosecution is even a possibility!

One very important point that emerges from the guidance is the Agencies' very broad view of what employers are considered “competitors” for antitrust purposes: “[F]irms that compete to hire or retain employees are competitors in the employment marketplace, regardless of whether the firms make the same products or compete to provide the same services.” Thus the issue is the talent a company seeks, not its business.

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