In 2016, the DOJ and the Federal Trade Commission (FTC) issued joint guidelines warning HR professionals that non-poaching and wage-setting agreements violate federal law. The agencies said it`s important to educate and inform HR professionals about how antitrust laws apply to the employment field, as they are in the best position to ensure their companies` hiring practices are in compliance with the law. In 2016, the DOJ and the Federal Trade Commission (FTC) issued guidelines for human resources professionals on how to avoid potential antitrust violations related to the use of non-poaching agreements. In the future, entrepreneurs should take note of the changing legal landscape. Existing anti-poaching agreements should be reviewed, and if you are considering entering into a new agreement, it is highly recommended that you have the agreement reviewed by a lawyer. What is a “no poaching” clause? A “no poaching” clause is a promise made by one or both parties to an agreement, in writing or orally, during the term of the agreement, or for a period after the termination of the employees, not to compete for the employees of the other party or of either party. They may appear in agreements as “non-recruitment”, “non-solicitation”, “non-hiring” or a clause with a similar name that affects an employee`s ability to move from one company to another. In addition to agreements such as the one mentioned above (Software License Agreement), the clause may also appear in commercial dispute resolution settlements, mergers and acquisitions, franchise agreements, service agreements or even customer purchase agreements. If an NCC is a condition you raised prior to employment, the job itself would be considered appropriate compensation. However, if you retroactively ask existing employees to sign a non-compete agreement, it`s a little more difficult.
Some companies claim that maintaining employment is sufficient compensation, but it is unclear whether this logic would stand up to legal scrutiny. As a safety precaution, it is probably wise to offer employees a raise or bonus in exchange for signing a non-compete agreement. Non-compete clauses or agreements generally stipulate that employees cannot work for a competitor or start a business in the same sector within a certain period of time after the end of their employment in a particular company. In theory, this is a great idea for employers, but are they enforceable? Given the Justice Department`s previous statements that it considers bare wage-fixing agreements and non-poaching per se to be illegal, and the new government`s critical view of such agreements, it is imperative for companies to raise awareness among companies that inappropriate labour market agreements could expose them to criminal charges and put the spotlight on the job. implementing a strong antitrust compliance program at the forefront. While non-compete obligations may make employers more comfortable, they ultimately impact workers` ability to earn a living, which would play a role in any legal assessment of either of these agreements. If your company doesn`t have a valid and provable reason to implement an NCC and your state would allow this issue to be enforced, you`d probably be better off staying away from them. Anti-poaching deals can be illegal in the United States. Antitrust law in certain circumstances.
 Allegations of such agreements between major high-tech companies, including Apple and Google, served as the basis for high-tech employee antitrust litigation. At the state level, there are big differences depending on the state(s) in which your company operates. Some states, such as California, North Carolina and Oklahoma, completely ignore non-compete clauses. Other states have imposed various restrictions on employers who wish to apply THE NCCs, such as . B qualifying only certain highly competitive roles, or requiring employers to pay employees for each week they are not allowed to work for a competitor. In October 2016, the ministry announced that from then on, it intended to continue the no-poaching and bare wage agreements. Since the announcement in October 2016, the Cartel Division has continued to reinforce this message. For example, Andrew Finch said in a speech in January 2018 that “the department expects to lay criminal charges” for agreements that began after October 2016, as well as for agreements that began before that date but continued after that date. At the discretion of the Public Prosecutor`s Office, the Cartel Division will prosecute as civil violations the non-poaching agreements concluded and terminated prior to these announcements. A customer negotiates a software license agreement to obtain a license for certain IT services from a service provider. IT services were supposed to be a quantum improvement for our client, and they invested significant resources to maintain the services. Similarly, for the service provider (in this case, the licensor), the IT services represented a significant upgrade from the services previously offered – so much so that the service provider had specifically hired and trained staff to provide those services to our client.
In recognition of the value of the staff, the service provider requested that a clause be included in the agreement that our client would agree not to hire such staff for the duration of the agreement or for a short period thereafter. Since our client does not intend to recruit this staff, he sees no problem in the fact that the agreement contains this clause. Nevertheless, out of caution, they asked us if we saw a problem with this article. We are glad they asked the question, because there is a problem; a fairly important issue – an antitrust issue. The guidelines stated that the DOJ could conduct criminal investigations, but the ministry has only recently done so. The Department of Justice will “criminally investigate allegations that employers have agreed on workers` compensation or that they will not recruit or hire each other`s employees,” according to the guidelines. .
gepubliceerd op 26 januari 2022