Antitrust Chronicle^® – No-Poach

Dear Readers,

Competition law and policy are classically concerned with consumer welfare. In other words, lower prices, regardless of the consequences for other actors in the supply chain, have classically been the primary concern of the rules and their application.

However, there is no reason, in principle, why antitrust rules cannot apply to other aspects of the market process, including labor supply. As such, illegal agreements in labor markets that would prevent competitors from being able to hire each others’ (ex-) employees are not automatically immune from the application of the rules. 

Recently, antitrust authorities, litigants, and courts have increasingly shown a tendency to target employers for their actions in labor markets. This typically takes the form of condemning so-called “no-poach” or “wage-fixing” agreements, whereby competitors agree not to attempt to hire each others’ workforces. This can take place in sectors as diverse as fast-food franchises and high technology. 

So-called “no poach” agreements have seen greater prominence in recent days. The authors of the pieces in this Chronicle highlight the issues raised by these categories of agreements, in light of current enforcement practice worldwide.

As Dee Bansal, Jacqueline Grise, Beatriz Mejia & Julia Brinton point out, antitrust enforcement of conduct in labor markets has continued to ramp up over the past decade, with particularly intense scrutiny on “no-