On Tuesday, June 27, US antitrust agencies announced proposed changes to the premerger notification form and associated instructions and rules that implement the Hart-Scott-Rodino Act. Among other things, the proposed amendments require a labor market analysis including workforce categories, geographic information, and details on labor and workplace safety violations.
The proposed amendments are intended
Special thanks to co-authors Eunkyung Kim Shin and Alexandre Lamy.
Last month, the U.S. Department of Justice issued a new fact sheet reminding employers of how to simultaneously comply with export control regulations and avoid running afoul of anti-discrimination provisions contained in the Immigration and Nationality Act. The new fact sheet aligns with recent
Special thanks to Geoff Martin and Maria Piontkovska.
On March 3, 2023, the Criminal Division of the United States Department of Justice (“DOJ”) published details of a three year Pilot Program Regarding Compensation Incentives and Clawbacks (the “Compensation Pilot Program”). The Compensation Pilot Program is effective March 15, 2023 and from that date it will be applicable to all corporate criminal matters handled by the DOJ Criminal Division. At the same time, DOJ also updated its Evaluation of Corporate Compliance Programs guidance document to reflect the criteria introduced by the Compensation Pilot Program, among other updates.
Background and Objectives of the Compensation Pilot Program
The concept of incentivizing corporate compliance by structuring compensation programs to reward compliant behaviors and punish non-compliant ones, is nothing new. For example, prior editions of the Evaluation of Corporate Compliance Programs addressed appropriate incentives for company management and executives to promote good governance and compliance, and expectations about the consistent application of discipline against employees found to be involved in misconduct.
However, in a September 2022 memo to DOJ prosecutors titled: “Further Revisions to Corporate Criminal Enforcement Policies Following Discussions with Corporate Crime Advisory Group“, Deputy Attorney General Lisa Monaco indicated that DOJ intended to go further on this particular topic. In the memo, Monaco indicated that DOJ would expect companies to design compensation structures not only to incentivize and reward good compliance practices, but also to financially penalize individual employees found to have been engaged in misconduct, including by clawing back compensation after the fact.
DOJ’s objective in this initiative is to encourage companies to redistribute some of the cost and penalties associated with individuals’ criminal conduct away from the company (and its shareholders) and onto the individuals themselves. Because misconduct is often discovered after the fact, measures that enable retroactive discipline and clawback of compensation already paid, are of particular importance to DOJ. These measures also reinforce DOJ’s continued focus on individual accountability which has been another of DOJ’s recent areas of focus in addressing corporate criminal matters.
Six months after Monaco’s memo, the Compensation Pilot Program now puts concrete DOJ policy in place to implement those objectives. At the end of the three year pilot period, DOJ will determine whether the Compensation Pilot Program will be extended or modified. If it is deemed a success, we can expect the Compensation Pilot Program to be fully adopted by DOJ. Continue Reading Practical Considerations When Addressing New DOJ Compensation Incentives and Clawbacks Program
In the wake of the economic downturn resulting from the COVID-19 pandemic, government investigations into perceived preferential treatment of foreign workers by U.S. employers is expected.
At-risk companies include those in industries that typically employ a higher number of foreign workers under H-1B, H-2A and H-2B visas, from technology and consulting to hospitality and food
On October 20, 2016, the US Department of Justice (DOJ) and Federal Trade Commission (FTC) issued antitrust guidance for human resource (HR) professionals and others involved in hiring and compensation decisions. The guidance warns of criminal prosecution against companies, HR professionals and other individuals, for formal and informal wage-fixing or no-poaching agreements between companies. The
