The United Sates Department of Justice (DOJ) and
Federal Trade Commission (FTC) Release Antitrust Guidelines for
Employers and Human Resources Professionals
In 1994, the DOJ brought suit against the Utah Society for Healthcare
Human Resources Administration for conducting salary surveys and “conspiring
to exchange nonpublic prospective and current wage information
pertaining to registered nurses.” The suit alleged that
the exchange of information between the hospitals caused them to
match each other’s wages which kept the pay of the registered
nurses artificially low, thus violating the Sherman Antitrust Act.
On October 25, 2016, The DOJ and FTC jointly released a publication
entitled “Antitrust Guidance for Human Resources Professionals.” One
of the issues focused on in this publication is the exchange between
competitors of wage information and the subsequent improper efforts
to fix wages. According to the publication, these activities violate
federal antitrust laws which may result in criminal prosecution,
imprisonment, fines and other penalties being imposed not only
on employers, but also on the individuals involved in those data
gathering activities such as company owners, managers, supervisors
or human resources professionals.
The Antitrust Guidelines point out that not all information exchanges
are unlawful. Conducting salary surveys or obtaining salary information
may be lawful if it is conducted by an independent or neutral third
party who manages the exchange of information, the information
is relatively old, the information is aggregated to protect the
identity of the participants, and enough sources are aggregated
to prevent competitors from linking specific data to a specific
The Guidance cautions company owners, managers, supervisors and
human resources professionals to avoid distributing wage surveys
which ask companies about current and future salary information
as well as discussing specific compensation policies with individuals
who may work for competitor companies.
Many human resources practitioners belong to local, state or national
professional or other networking organizations such as SHRM. While
information sharing can be one of the main reasons that networking
is valuable, HR personnel should exercise caution in the types
of information that they share which pertains to their own organizations.
Paul Hilton Human Resources Consulting works with our clients to insure that all required documentation is correct and sufficient to successfully defend against a claim to any unemployment compensation commission.
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