Lessons Learned: The DOJ's Crackdown on Hiring Practices

While a company's independent decision not to recruit from a competitor isn't likely to constitute a violation of antitrust laws, when two or more companies actively agree not to pursue each others' employees, the antitrust laws need to be considered. The DOJ has argued that where employers covenant not to poach a competitor's employees, such agreements may enable a company to monopolize a market in violation of Section 2 of the Sherman Act or, by harming a competitor's ability to hire the most qualified candidates, create an unreasonable restraint of trade in violation of Section 1. Although the DOJ investigation is currently focused on the technology industry, where intellectual property disputes are frequently litigated, the DOJ may expand its scrutiny to other industries. Therefore, in-house counsel in all areas of the economy should take time to examine and revise employee hiring and retention policies to avoid running afoul of antitrust laws.