Agreement Between Companies Not To Hire
A: Yes. For example, in 2007, the DOJ sued the Arizona Hospital and Healthcare Association for illegally implementing a uniform rate plan for temporary nurses for AzHHA member hospitals. In 2010, DOJ decided with Adobe, Apple, Google, Intel, Intuit and Pixar to illegally accept non-poach agreements. Following a private class action for more than $600 million. In the fall of 2016, the U.S. Department of Justice`s antitrust division announced that from that date it “intends to pursue bare non-vaccination and wage agreements.” According to the Cartel Service, agreements are bare when they are not reasonably necessary for separate and legitimate commercial cooperation between employers. [and] are in themselves illegal because they eroded competition in the same irretrievable way as product pricing or customer award agreements.” As part of its enforcement and competition advice, the Cartels Department has been looking at companies and individuals for years how antitrust laws apply to recruitment and compensation decisions. In particular, the department protects labour markets and workers by actively examining and challenging non-discrimination and compensation agreements between employers. When companies agree not to hire or hire, they agree not to compete with the work of those employees. When they deprive employees of competition in the labour market, they are deprived of employment opportunities, information and the ability to use competing offers to negotiate better terms of employment. Under antitrust law, the same rules apply when employers compete in labour markets for talent as in competition for the sale of goods and services.
The United States has asked the Court to apply the rule per se when it finds that Duke and UNC have entered into a nude no-poach agreement. It also argued that, on the basis of the allegations made in the operational complaint, the court should not establish that Duke University has immunity derived from liability for cartels and abuse of dominance when the court found that it entered into an illegal agreement in violation of Section 1 of the Sherman Act. The workers concerned had argued that such agreements restricted their ability to promote in the sector and stifled their attempts to obtain higher wages.  Leah Nylen, the number of “shocking” agreements revealed by the DOJ, says MLex Market Insight, May 17, 2018. Employers should review their existing contracts to determine if they do not have poaching and assess whether they should be removed. In addition, staff professionals and others involved in recruitment and compensation decisions should review the DOJ/FTC “guidelines” to identify and avoid antitrust pitfalls. The deluge of activities in this area of restrictive contract law will remain a hot topic for the foreseeable future, as will the threat of criminal and civil prosecutions for companies implementing non-poaching agreements. From an antitrust perspective, companies that compete to recruit or retain their employees are competing firms in the labour market, whether companies manufacture the same products or compete for the same services.