This article details the potential exposure to criminal and civil liability from no-poach or wage-fixing agreements between competitors under antitrust laws.  The first antitrust lawsuits related to no-poach agreements burgeoned on the scene in 2010, and now in 2022, the Department of Justice fulfilled its promise to vigorously prosecute these cases.  This article takes a deep dive into the recent cases prosecuted by the Department of Justice, and related developments for franchisors-franchisees.  While there is no binding appellate or Supreme Court guidance that no-poach agreements are an antitrust violation, and recent jury verdicts have largely acquitted defendants, companies and executives should proceed with caution and follow the compliance strategies outlined in this article to avoid facing criminal and costly civil liability.  

By Dan M. Forman, Esq.[1]

 

In the COVID era, employers seeking to protect their employee base and maintain compensation levels must be very careful not to run afoul of potential criminal and civil liability that can arise from no-poach or wage-fixing agreements reached with competitors. A no-poach agreement is an agreement among two or more employers not to hire each other’s employees and/or to restrict compensation and/or benefits so that employees are not able to locate better compensation packages from the competition. Wage-fixing occurs when competitors agree to set salaries or wages or not to increase

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