The Department of Justice and Federal Trade Commission Guidance for Human Resources Professionals and Recent Comments by Enforcement Officials Related to No-Poaching Agreements
White Paper, 2018
Agreements among competitors to fix prices or allocate customers are well known as violations of antitrust law, especially for employers in product markets. The application of these laws to purchasers of labor is not nearly as well known – but this may be changing. Many franchise agreements include provisions related to no-poaching agreements between employers that restrict their ability to recruit or hire each other's employees. Such agreements may have antitrust implications, and are increasingly attracting the attention of regulators and plaintiffs alike.
Analysis Group Vice Presidents Shannon N. Seitz and Federico Mantovanelli and Manager Filippo Balestrieri address this emerging topic in an article, “The Department of Justice and Federal Trade Commission Guidance for Human Resources Professionals and Recent Comments by Enforcement Officials Related to No-Poaching Agreements,” published in the ABA's Distribution newsletter. In the article, the authors provide an overview of the relevant antitrust laws and how they apply to the hiring and retention of workers by employers, review recent Department of Justice and Federal Trade Commission guidance on how employers can avoid violating antitrust laws, and provide insight into what employers may expect with respect to enforcement of no-poaching agreements under the Trump administration.