Non-poaching clauses are treated as price agreements, since they are agreements between buyers (here employers and potential employers) to purchase services from sellers (employees) under certain conditions and / or refuse to offer them competitive services. Like all price agreements, these agreements are in themselves illegal. (A buyer`s agreement is called a “monopson” and not a “monopoly.”) Just as antitrust laws protect the competitive market for an employer`s products or services, they also protect the market of their employees in order to sell their services. However, customers should remember that, in this context, their competing buyers of services are not only their competitors in the markets for their goods and services, but also customers, suppliers and others who wish to purchase the services of their employees. While Google has managed to file a lawsuit against Levandowski, debauchery bans and recruitment bans are not a panacea. Indeed, employers who have no-pocher agreements with Indiana employees may find that these contractual provisions are legally unenforceable. As of December 2019, the Indiana Supreme Court at Heraeus Medical, LLC v. Zimmer checked a company`s no-binge agreement and found that it was not applicable because it prohibited a former employee from recruiting all of the company`s employees instead of those in which the company has a “legitimate interest to protect.” The Heraeus decision can be distinguished from an upcoming set of facts for a number of reasons, but it is quite clear that Indiana employers need to review and, if necessary, revise these agreements. We work with many clients to do just that and we encourage you to seek the help of a lawyer so that you can seek advice on your business options. The U.S.
Department of Justice (DOJ) and U.S. Federal Trade (FTC) Guidelines (“Guidelines”) are available on the DOJ website. In its guidelines, the DOJ notes that “[a] person is likely to violate antitrust laws if he or she . agreed with people from another company to refuse to apply for or hire staff from that other company (so-called “no poaching” agreements). Id. at 3. The consequences of concluding a non-poaching agreement are significant. On the same page, the DOJ states that “no debauchery agreement between employers, whether entered into directly or through a third intermediary, is in itself illegal under antitrust laws.” As with other offences in themselves, non-poaching agreements are intended for enforcement measures, including criminal prosecution of the parties concerned and individual decision-makers. The guidelines specify that, although it is considering criminal prosecution, it has so far only initiated civil enforcement measures for non-poaching agreements. The same issue is being negotiated in a class action lawsuit filed in February in federal court in New York, involving some of the world`s largest luxury goods retailers, including Gucci, Louis Vuitton, Saks and Prada.
. . .