{"id":10342,"date":"2026-04-19T17:43:53","date_gmt":"2026-04-19T17:43:53","guid":{"rendered":"https:\/\/usatrustedlawyers.com\/blog\/expect-continued-law-enforcement-focus-on-no-poach-agreements-in-2022\/"},"modified":"2026-04-19T17:43:53","modified_gmt":"2026-04-19T17:43:53","slug":"expect-continued-law-enforcement-focus-on-no-poach-agreements-in-2022","status":"publish","type":"post","link":"https:\/\/usatrustedlawyers.com\/blog\/expect-continued-law-enforcement-focus-on-no-poach-agreements-in-2022\/","title":{"rendered":"Expect Continued Law Enforcement Focus on No-Poach Agreements in 2022"},"content":{"rendered":"\n
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In 2021, the Department of Justice (\u201cDOJ\u201d) and Federal Trade Commission (\u201cFTC\u201d)\u2014the two agencies principally charged with enforcement of the antitrust laws\u2014significantly increased their focus in the labor and employment space, in parallel with public awareness activities such as a recent December 2021 workshop<\/a> on \u201cPromoting Competition in Labor Markets.\u201d This blog post will discuss the DOJ and FTC increased focus on so called \u201cno-poach\u201d agreements, where competitors agree not to hire or solicit each other\u2019s employees, and how that focus is expected to continue in 2022.<\/p>\n

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DOJ and FTC Guidance<\/h3>\n

In 2016, the DOJ and FTC jointly issued \u201cAntitrust Guidance for Human Resources Professionals<\/a>,\u201d authored by S&C\u2019s Renata Hesse during her tenure as acting assistant attorney general. The guidance explains that \u201cfirms that compete to hire or retain employees are competitors in the employment marketplace, regardless of whether the firms make the same products or compete to provide the same services. It is unlawful for competitors to expressly or implicitly agree not to compete with one another, even if they are motivated by a desire to reduce costs.\u201d As for so-called naked no-poach agreements that, for instance, are unrelated to collaborative joint venture activity, the DOJ and FTC explained that \u201cAgreements among employers not to recruit certain employees or not to compete on terms of compensation are illegal,\u201d including agreements \u201cto refuse to solicit or hire that other company\u2019s employees.\u201d Moreover, \u201c[n]aked\u00a0\u2026 no-poaching agreements among employers, whether entered into directly or through a third-party intermediary, are per se illegal under the antitrust laws. That means that if the agreement is separate from or not reasonably necessary to a larger legitimate collaboration between the employers, the agreement is deemed illegal without any inquiry into its competitive effects.\u201d The guidance notes that it is irrelevant whether the alleged agreement is \u201cinformal or formal, written or unwritten, spoken or unspoken.\u201d<\/p>\n

The 2016 guidance also announced the DOJ\u2019s intention to seek criminal penalties, stating, \u201cGoing forward, the DOJ intends to proceed criminally against naked\u00a0\u2026 no-poaching agreements.\u201d That intention was reaffirmed in September 2019 by the then-assistant attorney general of the Antitrust Division of the DOJ, Makan Delrahim, who said in a speech<\/a>, \u201cI want to reaffirm that criminal prosecution of naked no-poach\u00a0\u2026 agreements remains a high priority for the Antitrust Division.\u201d<\/p>\n

The Sherman Act, which prohibits \u201cevery contract, combination, or conspiracy in restraint of trade,\u201d imposes criminal penalties<\/a> of up to $100 million for a corporation and $1 million for an individual, along with up to 10 years in prison.<\/p>\n

The DOJ\u2019s Recent Enforcement Activity<\/h3>\n

In 2021, the DOJ significantly increased its criminal enforcement activity in the labor and employment space by bringing a number of indictments based on no-poach agreements, including the following:<\/p>\n