No-poach agreements are adding further uncertainty for company counsel and human resource professionals tasked with navigating the already murky waters of federal and state antitrust laws. Bailey Brauer co-founder Clayton Bailey offered his insights on these agreements in “No-Poach Agreements: Too Many Chefs in the Kitchen?” which appeared in the October 2019 edition of the Dallas Bar Association’s Headnotes newsletter.
The article explores the recent guidance, lawsuits, and advocacy by the U.S. Department of Justice, enforcement actions by various states, and lawsuits filed by employees which have “raised as many questions as they have provided answers for determining whether a no-poach agreement is illegal.”
“Considering the current uncertainty involving no-poach agreements, employers (particularly in vertically related firms) should review their existing contracts for no-poach clauses and evaluate removing them after seeking advice from antitrust counsel,” Mr. Bailey wrote.
“While the DOJ has provided a framework of ‘the right questions to ask in a systematic way’ for preliminarily reviewing no-poach agreements, there is no guarantee that a state AG or judge will view the law similarly.”
The full article can be found in the digital edition of the October 2019 edition of Headnotes.