In 2016, the Department of Justice (DOJ) and the Federal Trade
Commission (FTC) jointly issued “Antitrust Guidance to Human
Resource Professionals,” addressing employee no-poach
agreements – agreements between two or more employers that
restrict employee recruiting or hiring.1 According to the agencies, these
agreements may violate Section 1 of the Sherman Act by depressing
wages and impeding employee mobility. No-poach agreements also fall
within the purview of various state consumer protection statutes,
such as California’s Cartwright Act and Washington’s
Consumer Protection Act.
Recently, private litigants and state enforcers have targeted
no-poach clauses in franchise agreements spanning the economic
spectrum, including fast-food, fitness studio, hotel/motel,
automotive service, and tax preparation chains. Typically, these
franchise no-poach agreements restrict franchisees from hiring
employees of the franchisor or other franchisees. Discussed in
detail below, Sti
