In 2016, the Department of Justice (DEPARTMENT of Justice, DOJ) and the Federal Trade Commission (FTC) co-edited “Antitrust Guidance to Human Resource Professionals,” which deal with agreements on non-poached agreements for workers – agreements between two or more employers that limit the hiring or hiring of employees. [1] According to the agencies, these agreements may violate Section 1 of the Sherman Act by lowering wages and impeding workers` mobility. Non-Poach`s agreements also fall under various state consumer protection laws, such as the California Cartwright Act and Washington through the Washington Consumer Protection Act. In addition to the granting of the DOJ and FTC guidelines for cartels and abuse of dominance for human resources professionals, the division has presented expressions of interest in private cartel and abuse of dominance proceedings, which are pending in several federal district courts. As part of the division`s expanded Amicus program, the United States presented expressions of interest to provide a more complete presentation of the application of Section 1 of the Sherman Act to employer agreements that do not compete for workers. In all cases, companies should avoid entering into agreements or agreements with other companies about their current or potential employees without first seeking the advice of an experienced cartel advisor. In its declaration of interest, the Department submitted that a franchisor and a franchisee are not automatically considered an entity and that they may be separate entities capable of conjuring within the meaning of Section 1. The United States also argued that bare horizontal non-poaching agreements between competing employers within a franchise regime were generally subject to the rule per se. However, a restriction in a franchise agreement prohibiting franchisees from playing each other`s employees is generally subject to reason, since it is not an agreement between franchisees, as it is a vertical restriction. If there is an alleged agreement between the franchisees, the restriction is subject to the explanatory statement as long as it is incidental; it is separate from the legitimate cooperation of the franchise and reasonably necessary. In addition, the Division submitted that the “Quick-Look” form of the rule review was not applicable, since the Tribunal had to balance the anti-competitive effects of the competitive advantages of non-poach franchise agreements, which are considered vertical or incidental restrictions. A. In some cases, yes.

For example, where a “No Poach” agreement is part of a separate and legitimate trade transaction or other pro-competitive cooperation, the courts will consider whether the No Poach agreement is reasonably necessary to “make the core business more effective in achieving its objectives.” [3] Such “incidental agreements” without poaching may, for example, be permitted to promote an otherwise pro-competitive merger or to make a joint venture more efficient. D. However, in these cases too, cartel legislation requires that non-poach agreements be adapted both in terms of scope and duration. Non-Poach agreements that apply to junior workers or youth are unlikely to be investigated for cartels and abuse of dominance. The same is true for non-poaching agreements that are not sufficiently limited. On April 3, 2018, the Cartel Service filed a cartel and abuse of dominance action against Knorr-Bremse AG and Westinghouse Air Brake Technologies Corporation (“Wabtec”), at the same time as it filed a civil transaction. The complaint accuses these companies and a third-party company, Faiveley, of having already entered into in 2009, in violation of Section 1 of the Sherman Act, no-poach nus agreements, which began as early as 2009 and last until at least 2015.