3
the law has looked with skepticism on restraints on workers’ future employment.
7
In
labor markets today, antitrust protections promote competition among employers,
contributing to higher wages, benefits, and working conditions for employees.
The Antitrust Division, therefore, sees promoting competition and challenging
anticompetitive practices in labor markets as critical to its mission. For years, it has
challenged firms and individuals that use anticompetitive employment practices such as
no-poach agreements, wage-fixing conspiracies, unlawful information exchanges, and
non-compete clauses that harm competition.
8
The Antitrust Division has also challenged
horizontal agreements between employers not to hire each other’s workers as criminal
violations of the antitrust laws.
9
In addition, the Antitrust Division has filed amicus
briefs and statements of interest in cases addressing employment restraints.
10
Anticompetitive employment agreements result in a range of harms by depriving workers
of a competitive market for their services and by depriving employers of a robust pool of
7
Dyer’s Case, Y.B. Mich. 2 Hen. 5, f. 5, pl. 26 (C.P. 1414).
8
See, e.g., United States v. Am. Tobacco Co., 221 U.S. 106, 181-83 (1911) (finding tobacco companies
violated both Section 1 and Section 2 of the Sherman Act because of the collective effect of six of the
companies’ practices, one of which was the “constantly recurring” use of non-compete clauses); United
States v. Patel, et al., No. 3:21-cr-220,-VAB 2022 WL 17404509, at *8-10 (D. Conn. Dec. 2, 2022)
(alleging defendants agreed to “restrict the hiring and recruiting of engineers and other skilled-labor
employees between and among” competitors); United States v. Manahe, No. 2:22-cr-00013-JAW, 2022
WL 3161781, at *7 (D. Me. Aug. 8, 2022) (“The Court concludes that the indictment alleges a recognized
per se illegal form of market allocation among purchasers of labor.”); United States v. Hee, No. 2:21-cr-
00098-RFB-BNW (D. Nev. Mar. 30, 2021); United States v. Surgical Care Affiliates, LLC, No. 3:21-cr-
00011-L (N.D. Tex. July 8, 2021); United States v. Cargill Meat Solutions Corp. et al., No. 1:22-cv-01821-
ELH (D. Md. July 25, 2022) (resolving unlawful exchange of wage and benefit information among chicken
processing plants).
9
See United States v. DaVita Inc., No. 1:21-CR-00229-RBJ, 2022 WL 266759, at *3 (D. Colo. Jan. 28,
2022) (denying defendants’ motion to dismiss criminal claims on the basis that naked non-solicitation
agreements or no-hire agreements to allocate the market are per se unreasonable, as “anticompetitive
practices in the labor market are equally pernicious—and are treated the same—as anticompetitive
practices in markets for goods and services.”); see also United States v. Patel, 2022 WL 17404509, at *10-
11 (holding agreement described in indictment was appropriately subject to per se treatment as it described
a horizontal agreement to allocate employees in a specific labor market).
10
See, e.g., Brief for the United States and Federal Trade Commission as Amici Curiae, Deslandes v.
McDonald’s USA, LLC, No. 22-2333, 22-2334 (7th Cir. Nov. 9, 2022); Brief of the United States as
Amicus Curiae, Aya Healthcare Servs., Inc. v. AMN Healthcare, Inc., No. 20-55679 (9th Cir. Nov. 19,
2020); Statement of Interest of the United States, Markson v. CRST Int’l, Inc., No. 5:17-cv-01261-SB (SPx)
(C.D. Cal. July 15, 2022); Statement of Interest of the United States, In re Outpatient Med. Ctr. Emp.
Antitrust Litig., No. 1:21-cv-00305 (N.D. Ill. Dec. 9, 2021); Statement of Interest of the United States at 22-
23, Seaman v. Duke University, No. 1:15-CV-462 (M.D.N.C. Mar. 7, 2019) (no-poach agreements between
competing employers serve to allocate employees within a labor market); Statement of Interest of the
United States at 4, In re Ry. Indus. Emp. No-Poach Antitrust Litig., No. 2:18-MC-00798 (W.D. Pa. Feb. 8,
2019) (“no-poach agreements among competing employers are per se unlawful unless they are reasonably
necessary to a separate legitimate business transaction or collaboration among the employers”); Statement
of Interest of the United States at 11, Beck et al. v. Pickert Medical Group, P.C., et al., No. CV-21-02092
(2d Jud. Dist. Nev. Feb. 25, 2022) (asserting that even if non-compete agreements were ancillary to a
broader collaboration, “several allegations suggest they would be unreasonable under a rule-of-reason
analysis”).