Learn how hiring agreements, including no-poach and noncompete clauses, may violate antitrust laws and impact your business.
Agreements affecting hiring practices, particularly among competitors, are relatively common, and have been in existence for quite some time. Despite the prevalence of such agreements, however, their legality has frequently come into question. Depending on the facts, certain agreements affecting hiring practices may be deemed reasonable, and, therefore, lawful. On the other hand, there are situations where these same agreements may be deemed unlawful, and in certain circumstances unlawful per se resulting in potential significant consequences under the antitrust laws. As early as 2016, through the issuance of the Antitrust Guidance for Human Resource Professionals, the antitrust enforcement agencies announced their intention to focus on protecting competition in labor markets, and to criminally prosecute, when determined to be appropriate, parties that engage in such practices. This was reinforced through the FTC's unsuccessful efforts to ban most noncompete provisions. As labor markets continue to tighten, enforcement, including criminal prosecutions of unlawful conduct, has increased. This topic will discuss the types of agreements that may cause a problem, antitrust laws implicated by such agreements, and recent enforcement and protocols and best practices for avoiding unlawful conduct.
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Agenda
How Agreements Impacting Hiring Decisions Implicate the Antitrust Laws
- Description of Relevant Employment Markets
- Description of Agreements at Issue Including No-Poach Agreements and Agreements Affecting Compensation
- Analysis of the Relevant Antitrust Statutes
Review of the Antitrust Guidance for Human Resource Professionals Issued Jointly by the Antitrust Division of the Department of Justice and Federal Trade Commission
Antitrust Enforcement Relating to Employment Practices
- Agency Enforcement Before Antitrust Guidance for Human Resource Professionals
- Agency Enforcement Post Antitrust Guidance for Human Resource Professionals
- Changes in the Agency Enforcement Personnel and Priorities
- FTC Rule Banning Noncompete Provisions
- Civil Litigation Addressing Employment Practices
Protocols to Protect Against Adverse Consequences
- Safeguards for Review and Drafting Related Agreements
- Protocols for Information Sharing
- A Look at the Ancillary Restraints Doctrine
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OnDemand Course
This course was last revised on February 18, 2025.
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- AK CLE 1.0
- Alaska attorneys may receive 1.0 hours of continuing legal education for completing this program. Please contact the Alaska Bar Association or go to www.alaskabar.org for details regarding reciprocity with other states.
- AL CLE 1.1
- This course or a portion thereof has been approved by the Alabama State Mandatory Continuing Legal Education Commission for a maximum of 1.1 hours credit.
- AR CLE 1.0
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- Arizona CLE 1.0
- The Arizona State Bar does not pre-approve or pre-certify MCLE programs. However, records of this program and attendance will be maintained by Lorman Education Services for auditing purposes. This activity may qualify for up to 1.0 hours toward your annual CLE requirement for the State Bar of Arizona.
- CA MCLE 1.0
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- CT CLE 1.0
- Neither the Connecticut Judicial Branch nor the Commission on Minimum Continuing Legal Education approve or accredit CLE providers or activities. This course has been approved for CLE credit in jurisdictions aside from CT and therefore it automatically meets the content and delivery requirements in Connecticut. Credit is based on a 60 minute credit hour and shall be awarded as follows: 1.0 CLE credit(s).
- FL CLE 1.5 including Antitrust and Trade Regulation 1.5
- This course has been approved by The Florida Bar for 1.5 hours of CLE credit.
This course has been approved by The Florida Bar Certification Plan in the area of Antitrust and Trade Regulation for 1.50 hours. Course classification: Intermediate level.
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- HI CLE 1.0
- This program was approved by the Hawaii State Board of Continuing Legal Education for 1.0 CLE credit hours.
- IA CLE 1.0
- No-Poach Agreements, Restrictive Covenants, and the Ancillary Restraints Doctrine is accredited under the regulations of the Iowa Supreme Court Commission on Continuing Legal Education. It is planned that this program will provide up to a maximum of 1.0 hour(s) of unmoderated credit towards the mandatory continuing legal education requirements under the Iowa rule.
- IL CLE 1.0
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- IN CLE 1.1
- This program has been approved by the Indiana Commission on Continuing Legal Education. Participating attorneys are eligible to receive up to 1.1 hours of Distance Education credit.
- MO CLE 1.3
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- NM CLE 1.0
- This program has been approved by the New Mexico Minimum Continuing Legal Education Board for 1.0 hours of credit.
- NV CLE 1.0
- This program has been approved by the Nevada Board of Continuing Legal Education for 1.0 CLE hours.
- NY CLE 1.0 including Areas of Professional Practice 1
- This course has been approved in accordance with the requirements of the New York Continuing Legal Education Board for up to a maximum of 1.0 credit hours in the area(s) of Areas of Professional Practice for 1.00 hour. Each hour may be counted only as satisfying one category of credit. Duplicate credit for the same hour of instruction is not permitted. This course qualifies for both established and newly admitted attorneys. Lorman Education- Noggin Guru, Inc. has a financial hardship guideline. Please contact customer service at 1.866.352.9539 for instructions on how to apply.
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- PA CLE 1.0
- This Distance Learning program has been approved by the Pennsylvania Continuing Legal Education Board for 1.0 hours of substantive law, practice and procedure CLE credit.
- RI CLE 1.0
- This program has been approved by the Rhode Island Mandatory Continuing Legal Education Commission for 1.0 hours of CLE credit.
- TN CLE 1.07
- This program has been approved as a distance learning format by the Tennessee Commission on Continuing Legal Education for a maximum of 1.07 hours of credit.
- UT CLE 1.0
- This program has been approved by the Utah State Board of Continuing Legal Education for 1.0 CLE hours.
- VA CLE 1.0
- This program has been approved by the Virginia Mandatory Continuing Legal Education Board for 1.0 CLE credit hours.
- VT CLE 1.0
- This self-study program has been approved by the Mandatory Continuing Legal Education Board of Vermont for 1.0 hour(s) of CLE credit. Please note: Attorneys may only claim 12 credits per compliance period in this format. This course is considered "Non-Moderated Programming without Interactivity".
- WI CLE 1.0
- This program qualifies for 1.0 hour(s) of ondemand CLE through the WI Board of Bar Examiners.
- WV MCLE 1.3
- This program has been approved by the West Virginia State Bar MCLE Commission for 1.3 MCLE hours.
To earn each credit Lorman offers through the OnDemand learning platform, you need to watch 100% of the program. Also, for certain credits you will need to fulfill additional requirements which will be displayed on the "credits" tab when viewing the course.
Virginia MCLE requirements do not allow approval for programs that do not include an audio or audiovisual component.
This program was previously offered as a live webinar. Virginia MCLE requirements do not allow approval for attendance at duplicate programs.
This program does NOT qualify, nor meet the National Standard for NASBA accreditation.
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- AK CLE 1.0
- Arizona CLE 1.0
- CA MCLE 1.0
- CT CLE 1.0
- HI CLE 1.0
- MO CLE 1.3
- NJ CLE 1.3
- NM CLE 1.0
- NY CLE 1.0 including Areas of Professional Practice 1
- OR CLE 1.0
- VT CLE 1.0
- WA CLE 1.0
- WV MCLE 1.3
This program does NOT qualify, nor meet the National Standard for NASBA accreditation.
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Why Lorman?
Over 38 years and 1.4 million customers worth of experience providing continuing education. Our passion is providing you world-class training to help you succeed in business and as a professional.
Faculty
E. John Steren
Epstein Becker & Green, P.C.
- Co-chair of the antitrust service team at the law firm of Epstein Becker & Green, P.C.
- Counseling and defending clients for over thirty-five years in antitrust matters, including defense of antitrust enforcement actions brought by the Federal Trade Commission and the Antitrust Division of the Department of Justice
- Broad successful litigation experience with respect to antitrust and other competition-related matters, including theft of trade secrets and violations of restrictive covenants
- Contributing author to numerous publications on the topic of antitrust and co-author of the widely circulated blog post Antitrust Byte
- Frequent lecturer on antitrust-related topics
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