A representative of the Justice Department’s Antitrust Division, at a recent symposium in Washington, announced that agreements between employers to refrain from hiring or “poaching” employees of another employer are “per se illegal” and may result in criminal prosecution. The representative stated that antitrust guidance issued in 2016 had announced that policy. It was clarified that the policy would be applied to all employers, regardless of whether they are a competitor of any product or provide the same services, since they could still be competitors for certain types of employees.
Obviously, this policy has not yet been accepted or endorsed by any court. However, employers should still be aware that, regardless of who is in the White House, the Antitrust Division has served notice of its policies and their future application.