State Antitrust Enforcement Of No-Poach Agreements And Non-Compete Agreements

As both federal and state enforcers begin treating non-compete and no-poach agreements to be anti-competitive in violation of the Sherman Act, the question becomes how are they investigating these agreements and whether the impact will actually be beneficial to low-wage workers. This article primarily describes State enforcement of no-poach and non-compete clauses as well as discusses how state investigations may have impacted federal enforcement. It will further discuss the benefit enforcement of these anti-competitive agreements has had on low-wage workers. First, this article discusses the Washington State Attorney General spearheading the enforcement against no-poach clauses, followed by other State Attorneys General and the Department of Justice. Second, it discusses how both State and Federal enforcers began investigating non-compete agreements, beginning with the Federal Trade Commission holding a public workshop in 2019 to examine whether it should restrict those agreements in employment contracts and with the Washington Attorney General investigating Washington coffee chain Mercurys Coffee. Finally, it discusses the implications of these investigations, including a 2021 economics study that found that the Washington State Attorney General’s Office investigation of no-poach clauses benefited low-wage workers.

By Christina Grey^[1]

I. INTRODUCTION

Since 2017, multiple State Attorneys General have pursued companies and franchises for having non-