No Poaching

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Agreements between companies who compete for employees have always been subject to antitrust scrutiny. But recently, “no-poach” agreements—i.e. agreements to not recruit or hire another party’s employees—have become the subject of a recent flurry of government enforcement actions and private class actions.

In this article, we discuss the types of no-poach covenants that are permissible, and the possible civil and criminal risks a company faces by entering into an impermissible no-poach agreement. We also discuss various alternatives to no-poach agreements that an employer can use to protect its workforce from competitor poaching.
Continue Reading Are No-Poach Agreements Becoming Extinct?

In October, the Department of Justice (“DOJ”) Antitrust Division and the Federal Trade Commission (“FTC” and collectively the “Antitrust Agencies”) jointly issued new guidance for Human Resource professionals regarding agreements between competitors related to hiring and compensation of employees (the “Guidance”).  The Guidance explains the Antitrust Agencies’ position with regard to wage-fixing[1] and no-poaching[2] agreements between competitors in the employment marketplace.[3]  It also highlights the agencies’ intent to shift toward criminal prosecution of companies and individuals who enter into these types of agreements when they are not ancillary to a legitimate business collaboration, such as a joint venture or a merger or acquisition.
Continue Reading New Guidance for HR Professionals Regarding Wage-Fixing and No-Poaching Agreements Highlights New Focus on Criminal Prosecutions and Raises New Concerns for Employer