Antitrust and Unfair Competition Law

Competition: Spring 2022, Vol 32, No. 1

NO-POACH AGREEMENTS: INCREASINGLY RISKY

Written by Laura K. Kaufmann1

I. INTRODUCTION

Following decades of scarce antitrust enforcement in labor markets, the Department of Justice ("DOJ") and Federal Trade Commission ("FTC") have begun to turn their attention towards so-called "no-poach" agreements: agreements between competitors to not solicit or hire one another’s employees. With DOJ prosecuting its first four criminal no-poach cases against employers in 2021, and a recent federal court decision endorsing DOJ’s view that some no-poach agreements can constitute per se antitrust violations, more aggressive antitrust scrutiny in this area is likely.

In light of this trend, employers must take care to ensure that their conduct, particularly communications with competitors, cannot give rise to an enforcement action. This article surveys the recent focusing of the enforcement agencies’ attention on no-poach agreements and provides a set of recommendations for employers to minimize the risk that their employment practices may give rise to antitrust liability.

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