In recent years, the U.S. Department of Justice (DOJ) has stepped up its enforcement of antitrust laws against companies that enter into so-called “no-poach” agreements, especially “naked” no-poach agreements, which DOJ considers to be per se illegal. “No-poach” or “no-hire” agreements are made between companies that normally compete for the same set of employees, but purposefully agree not to recruit, solicit, or hire the other employers’ workers.

At the same time, at least in the context of franchise agreements, DOJ has been advocating a more employer-friendly antitrust standard that allows franchisors to maintain provisions in their agreements with their franchisees that restrict the hiring of another franchisee’s employees. To advocate its position, DOJ has recently filed a number of “Statement of Interest” briefs with state courts hearing challenges to no-poach agreements brought by state attorneys general.

From an HR perspective, day-to-day operations present many situations in which federal antitrust law could come into play. For example, a talent acquisition professional agreeing with his or her counterpart at a separate company to recruit only from specific geographic areas in an effort to avoid bidding wars in hiring new employees would likely be a violation of federal antitrust law.

Given recent developments, we thought it might be helpful to refresh our 2017 primer on HR antitrust compliance to distinguish DOJ’s position regarding no-poach agreements in the franchise context and its persistent view regarding the illegality of agreements made between competitors to not compete for each other’s employees and the fixing of wages.

Members of the Center for Workplace Compliance (CWC) can read more here.