Implement protections in compliance programs: The Antitrust Division’s guidance regarding Evaluation for Corporate Compliance Programs in Criminal Antitrust Investigations considers the existence and effectiveness of reporting mechanisms that employees can use to report potential antitrust violations. Such mechanisms should enable employees to report anonymously and without fear of retaliation and should be clearly set out in a company’s compliance program. Companies should also ensure that their employees, managers, and supervisors are trained on the provisions of CAARA to make clear that they will not face any retaliation for reporting misconduct.
Potential consequences for companies: A company’s NDA policies and anti-retaliation policies are considered when the Antitrust Division makes charging and sentencing decisions. Specifically, the Antitrust Division will scrutinize whether NDAs are used to silence whistleblowers. Companies should note that using NDAs to obstruct an investigation may result in federal criminal violations. A company that interferes with employee cooperation also risks not meeting its obligations under the Antitrust Division’s leniency policy, which requires full cooperation from employees.
NDAs should be carefully evaluated: NDAs must be clear and precise. They should not prevent reporting of antitrust violations or imply that those who report potential crimes or cooperate with law enforcement risk subsequent ramifications by their employer, such as lawsuits, demotion, or termination. NDAs should be consistent with CAARA and should not imply that employees could face adverse consequences for reporting illegal conduct. Fear of retaliation reduces the likelihood that illegal activities will be reported, weakening antitrust detection and enforcement.
In more detail
In light of DOJ and OSHA’s Joint Statement, it is crucial to understand the protections afforded to employees under CAARA.
CAARA prohibits employers from discharging or otherwise retaliating against a worker for (1) reporting potential criminal antitrust violations and related crimes to their employer or the federal government or (2) assisting a federal government investigation or proceeding. This protection promotes whistleblowing by preventing retaliation and ensures individuals can report antitrust violations without concern for job loss or other forms of retribution.
The Antitrust Division’s updated guidance regarding Evaluation of Corporate Compliance Programs in Criminal Antitrust Investigations (ECCP)2 (see our alert here), stresses the significance of incorporating confidential reporting mechanisms into compliance programs. These mechanisms enable employees to report potential antitrust violations anonymously or confidentially, without fear of retaliation, which is an “integral element” of an effective compliance program. The Antitrust Division will assess a company’s NDA policies and anti-retaliation training when evaluating the efficacy of a company’s compliance program during criminal antitrust investigations. NDAs or contractual restrictions that hinder an employee’s ability to report could affect outcomes in charging and sentencing decisions by the Antitrust Division. The Antitrust Division’s head of criminal enforcement, Manish Kumar, has also noted that these NDAs could raise obstruction of justice concerns, which could result in additional federal criminal violations.
Acting Assistant Attorney General Doha Mekki has noted that members of the public are best positioned to bring forth invaluable information related to antitrust crimes, and they should feel free to report such activities without fear of consequences by their employer.
Conclusion
The Joint Statement emphasizes the importance of protecting whistleblowers who report antitrust crimes. It is essential for companies to include reporting mechanisms as part of their antitrust compliance policies, as well as safeguards and protections against retaliation for employees who report antitrust violations. Companies should take a fresh look at their NDAs to ensure compliance with CAARA. Using an NDA to impede an antitrust investigation may be a federal offense.
Companies should foster a culture of accountability and compliance by encouraging employees to report potential antitrust violations. This includes providing protective measures and assuring employees understand they can report antitrust violations without retaliation.
Companies that do not update their compliance programs may face consequences the next time they find themselves in front of DOJ.
1 Office of Public Affairs | Justice Department and OSHA Issue Statement on Non-Disclosure Agreements That Deter Reporting of Antitrust Crimes | United States Department of Justice
2 Evaluation of Corporate Compliance Programs in Criminal Antitrust Investigations
