Introduction
Antitrust enforcement of conduct in labor markets has continued
to ramp up substantially during the past decade, with particularly
intense scrutiny on agreements between employers of different
companies not to recruit or solicit employees of another, often
called 'no-poach' agreements.
Although these agreements have been subject to review for many
years, the US antitrust agencies – the Federal Trade
Commission (FTC) and the Antitrust Division of the Department of
Justice (DOJ) (together, the Antitrust Agencies) – first
issued formal guidance indicating that the DOJ would criminally
prosecute no-poach agreements and other forms of collusion in the
labor market in 2016. Until that point, enforcement had been mostly
focused on the healthcare and technology markets and only in the
civil context, analyzed under the rule of reason.
