Antitrust Compliance Policy
Updated December 21, 2023
1. Policy of Full Compliance
It is the policy of the Society for Human Resource Management ("SHRM") to comply fully with all applicable antitrust laws, state and federal. Consistent with this policy of full compliance, SHRM has adopted this Antitrust Compliance Policy.
2. Procedures and Conduct
Procedures
All SHRM membership, Board of Director and Committee meetings shall be conducted pursuant to agenda distributed in advance to attendees; discussions shall adhere to agenda items; minutes shall be kept of all SHRM membership, Board of Director and Committee meetings. All SHRM Board of Director and Committee meeting agenda and minutes shall be reviewed by designated SHRM staff prior to finalization, who shall consult with SHRM's General Counsel concerning such agenda and minutes when they deem necessary.
Attendance of SHRM General Counsel at Director, Membership or Committee meetings shall be at the discretion of the SHRM President/CEO.
A copy of the SHRM Antitrust Compliance Policy shall be included in/with Board of Director Board Meeting Books and Committee meeting agenda at least annually. The existence of the SHRM Antitrust Compliance Policy shall also be announced at each membership meeting, and copies of this Policy shall be available to members at such meeting and shall be posted on the SHRM Web site.
Conduct
A. SHRM shall not engage in activities or discussions which might be construed as a suggestion or attempt to: (a) raise, lower or stabilize prices or wages; (b) lessen competition in hiring or reach agreements with competitors relating to employee recruitment, compensation, or benefits; (c) regulate production; (d) allocate markets; (e) encourage boycotts; (f) foster unfair trade practices; (g) assist in monopolization; or (g) in any way violate applicable federal or state antitrust laws. In an effort to minimize the perception of collusion, SHRM should avoid discussing the below Prohibited Topics in a forum or meeting with competitors where it may be viewed as the participants are looking to reach an agreement on one or more of the Prohibited Topics.
B. Any SHRM member who participates in conduct in violation of the SHRM Antitrust Compliance Policy shall be subject to disciplinary measures, up to, and including, termination of membership in SHRM in accordance with the SHRM Bylaws.
3. General Overview of Pertinent Antitrust Laws
A. Federal Antitrust Statutes
The Federal antitrust provision of primary concern to SHRM members acting within the SHRM context is Section 1 of the Sherman Act (15 U.S.C. § 1).
Section 1 of the Sherman Act prohibits agreements that harm competition. Although courts have interpreted Section 1 to only prohibit "unreasonable" restraints of trade, the courts have further found that particular practices such as price or wage fixing, agreements not to recruit, hire, or otherwise compete for employees, group boycotts, or division of customers or markets are by their very nature so pernicious as to automatically be deemed "per se" unreasonable without the need for detailed inquiry as to their effect on the market.
The following activities within the SHRM context could violate Section 1 of the Sherman Act: (1) agreements to fix prices or wages or to divide customers or markets; (2) agreements not to recruit, solicit, or hire certain employees (“no-poach” agreements); (3) agreements on terms of employment or benefits offered to employees; (4) sharing competitively sensitive information with competitors, including information on current or future plans for hiring practices, employment policies, wages, benefits, or other terms of employment; (4) expulsion of members without just cause and reasonable procedures; (5) use of standardization or certification programs for the purpose of restricting certain companies or products or services from the market; or (6) use of wage or benefit surveys in a manner which encourages agreement on wage levels or benefits offered (“Prohibited Topics”).
Section 1 of the Sherman Act prohibits only agreements between independent companies that restrict competition and not activities that companies pursue independently. But because meetings of trade associations like SHRM can bring competitors together for discussions, the antitrust agencies (the FTC and the Antitrust Division of the Department of Justice) and private plaintiffs pursuing antitrust cases often point to trade association meetings as opportunities for participants to reach illegal agreements. This is why it is essential that attendees at SHRM meetings avoid any discussions of the prohibited topics that could be misconstrued as evidence that participants in the meeting reached an agreement with one another on that topic.
Violation of the Sherman Act Section 1 may be prosecuted criminally, punishable by fines of up to $100 million for a corporation and up to $1 million for an individual and/or up to ten (10) years imprisonment. In addition, violation of the Sherman Act Section 1 may subject those involved to civil liability for treble damages.
B. State Antitrust Statutes
Most states have antitrust statutes which equate to the Sherman Act Section 1, except that they apply to actions affecting commerce within the State, as opposed to interstate commerce. Virginia, where SHRM is based and operates, has a state antitrust equivalent of the Sherman Act Section 1 at Va. Code § 59.1-9.1. Violation of the Virginia Antitrust Act subjects the violator to civil damages, which can in the case of willful and flagrant violations be three (3) times the actual damages sustained.