DOJ Antitrust Division Provides Additional Insight on Its Analysis of No-Poach Agreements that May Be Subject to Criminal Prosecution

U.S. Antitrust, Competition & Trade Regulation and Labor, Employment & Workplace Safety Alert

Since 2016, the U.S. Department of Justice Antitrust Division (“DOJ” or “Division”) has increased its enforcement focus on agreements between labor market competitors not to hire each other’s employees — also known as “no-poach agreements” — stating on multiple occasions that naked no-poach agreements or agreements not to compete on employee compensation risk criminal prosecution. Through statements made earlier this month by a senior official in the Division, DOJ has now provided additional insight on the analysis it uses to determine whether a particular no-poach agreement should be criminally prosecuted. Employers in competitive labor markets should take note of DOJ’s repeated warnings when considering employment-related agreements with competitors and exchanging employment-related information with competitors, and they would also be well served to assess their current antitrust risk by proactively reviewing employment-related agreements with other employers through the lens of DOJ’s analysis. Such a proactive approach could significantly reduce a company’s exposure to extensive penalties arising from antitrust violations.

To read the full alert, click here.