The October 20, 2016, joint DOJ/FTC release, “Antitrust Guidance for Human Resources Professionals,” underscores the need for broad-based compliance programs that address all of the health system’s material regulatory challenges, not just those related to Medicare/Medicaid reimbursement, and fraud and abuse.

The agencies issued the Guidance to educate HR professionals about how the antitrust laws apply in the employment context. Their policy concern is the risk for harm to workers if companies that would ordinarily compete against each other to recruit and retain employees instead agree to fix wages or other terms of employment, or enter into so-called “no-poaching” agreements by agreeing not to recruit each other’s employees. The Guidance comes in the wake of several wage-fixing and no-poaching investigations and lawsuits in a variety of industries, including health care, by both the government and private plaintiffs.. It makes clear DOJ's intention to criminally investigate naked no-poaching or wage-fixing agreements that are unrelated or unnecessary to a larger legitimate collaboration between the employers.

In addition to the Guidance, the DOJ and FTC also issued an accompanying document entitled Red Flags for Employment Practices. This non-exhaustive guide lists scenarios that should raise antitrust concerns for managers and HR processionals.

This important new release should encourage the Compliance Committee to assure that the compliance program specifically addresses antitrust concerns across the spectrum of organizational conduct.

Corporate Law and Governance Update

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