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Managing the Modern Workplace
V&E International Labor & Employment Resources

DOJ Settles Enforcement Action Targeting “No Poach” Agreements

In our February post discussing this issue, we predicted that federal criminal antitrust prosecutions of no-poaching and no-hire agreements were on the near horizon due to the U.S. Department of Justice, Antitrust Division’s (“DOJ”) October 2016 guidance alerting companies and HR professionals to beware of the antitrust risk involved in hiring and compensation decisions. Making good on these warnings, the DOJ recently announced a settlement with two of the world’s largest rail equipment suppliers (Germany-based Knorr-Bremse AG (“Knorr”) and Delaware corporation Westinghouse Air Brake Technologies Corporation (“Wabtec”)) to resolve allegations that the companies maintained long-standing agreements not to compete for employees.

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  • 01
  • May
  • 2018

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Drugs and Guns

Worker shortages, relaxed views on drug use in the context of an opioid abuse epidemic, and issues related to gun violence are creating new challenges in workplaces in the United States. Record-low unemployment and increasingly limited immigration options are making qualified candidates more difficult to find. The movement to legalize marijuana has taken hold in America; despite marijuana’s use remaining a federal crime, there are nine states and Washington D.C. that have legalized its use. And concerns over both workplace gun violence and individual gun rights have intensified. These cultural and economic factors present challenges to employers seeking to respect individual rights while maintaining safe and lawful workplaces.

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  • 17
  • April
  • 2018

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Why Employers Should be Concerned About Equal Pay

Consider this common scenario: You have interviewed multiple candidates for a management position in your company. Everyone agrees that the only female candidate who applied for the position is clearly the best candidate. You meet with her again and ask her what kind of salary it would take to persuade her to come to work for your company. She voluntarily discloses that she is currently making $80,000 and would like to earn $90,000. You would have been willing to offer her a salary of $110,000 because that is what you recently agreed to pay a similarly qualified male candidate, but you offer her $100,000 instead, thinking that you are already exceeding her expectations. She happily accepts.

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  • 23
  • March
  • 2018

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Inevitable Disclosure in Texas: Are Companies Protected from Employee Movement that Threatens Their Trade Secrets?

Imagine an employee who has access to valuable information regarding how your business is run. That employee then accepts a position with a competitor in which he would perform similar job duties and in which the sensitive or proprietary information he knows about would be helpful (and probably made him a strong candidate in the first place). Moreover, it is almost certain that the sensitive or proprietary information will be revealed by virtue of that position. Even without a non-compete or confidentiality agreement, the former employer may have a claim that his former employee is violating trade-secret laws in the new job. This concept — that the employee will necessarily divulge his former employer’s confidential information in a subsequent job — is called “inevitable disclosure.”

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Criminal Antitrust Investigations Likely Underway in the Area of Employee Compensation and Hiring

In November 2016, we reported that the nation’s antitrust enforcement agencies, the Antitrust Division of the Department of Justice (DOJ) and the Federal Trade Commission, had jointly issued Antitrust Guidance for Human Resources Professionals alerting companies and HR professionals to beware of the antitrust risk involved in hiring and compensation decisions. The Agencies warned against agreements between two or more employers to limit or fix the terms of employment; to set wages and other compensation; or to refrain from soliciting or recruiting one another’s employees (referred to as “no-poaching” agreements). The 2016 Guidance put companies and individuals on notice that, going forward, such conduct would be subject to criminal prosecution.

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  • 16
  • January
  • 2018

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DOL Changes Course on When an Intern Should Be Paid

In the last few years, we have discouraged our clients — including many of the non-profit organizations that we represent on a pro bono basis — from engaging unpaid interns. Under the Department of Labor’s old six-factor test, whether a position required compensation has been based on a totality of the circumstances analysis focusing on the benefit gained by the employer from the intern’s work. Practically, this resulted in most internship positions requiring compensation.

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Contributors

Thomas H. Wilson

Thomas H. Wilson Partner

Christopher V. Bacon

Christopher V. Bacon Counsel

Sean Becker

Sean Becker Partner

Stephen M. Jacobson

Stephen M. Jacobson Partner

Martin C. Luff

Martin Luff Counsel

Lawrence S. Elbaum Partner

S. Grace Ho

S. Grace Ho Counsel

Jacob D. Ecker

Jacob D. Ecker Associate

Robert Sheppard

Robert Sheppard Associate