The “No-Poach” Approach: Update on the Antitrust Agencies’ Enforcement of Employment Agreements

Antitrust enforcement of conduct in labor markets has continued to ramp up over the past decade, with particularly intense scrutiny on “no-poach” agreements — agreements between or among employers of different companies not to recruit or solicit each other’s employees. The DOJ has committed to protect competition in labor markets, and President Biden has also signaled that competition in the labor market would be a priority for his administration. Consistent with these priorities, we have seen a significant increase in the number of investigations, criminal indictments, and private lawsuits based on alleged no-poach agreements. In this article, we summarize the legal landscape and highlight key trends. Specifically, we discuss DOJ’s recent criminal indictments, DOJ’s latest statements on its position regarding the legal standard applied to franchisee/franchisor agreements, the question of whether criminal prosecutions present a “due process” issue, and international developments. Against this backdrop, companies and employees should continue to avoid conduct that may raise red flags and should consider implementing a robust antitrust compliance policy, including antitrust training for employees, and engaging antitrust counsel to review current non-solicitation provisions and non-compete clauses.

By Dee Bansal, Jacqueline Grise, Beatriz Mejia & Julia Brinton^[1]

I. INTRODUCTION

Antitrust enforcement of conduct in labor markets has continued to