Feds target no-poach agreements: 5 things for ASCs to know 

Staffing shortages amid the COVID-19 pandemic have led to an increase in "no-poach" agreements to restrict employee mobility, according to a June 22 article in JDSupra.  

The agreements, which suppress competition, have pushed action from the federal government, including an executive order from President Joe Biden to promote competition in the American economy.

Healthcare businesses, including ASCs, need to focus on how to recruit and retain employees while avoiding these agreements, according to the article. 

Here's what ASCs need to know:

1. No-poach agreements are arrangements between employers who agree not to recruit each other’s employees. They include wage-fixing arrangements under which companies don't compete on specific terms, including compensation. 

2. These agreements can exist formally, through a written contract, or informally, via a verbal commitment. Any casual conversation can form the basis of a no-poach agreement if anticompetitive practices are discussed. 

3. No-poach litigation can be initiated by the U.S. Justice Department, the Federal Trade Commission or private parties affected by the arrangements. In many cases, these suits are class-action litigation brought by a group of employees, according to the report.  

4. ASC companies have been the target of some of these suits. On Jan. 5, 2021, the Justice Department indicted ASC chain Surgical Care Affiliates on charges of conspiring with a Texas company not to solicit senior-level employees. 

5. To avoid entering into no-poach agreements, according to the article, employers should refrain from making any deals with other employers regarding compensation and not share competitive information. 

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