One Size Does Not Fit All: A Comparative Approach to Antitrust Enforcement Against No-Poaching Agreements

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The infamous “no-poaching” agreements, which prevent an employer from poaching his competitor’s employees, have recently been in the focus of the U.S. Department of Justice antitrust enforcement policy. Once considered a tool reserved for high-tech companies in Silicon Valley which were seeking to preserve their trade secrets and the know-how of their workforce by any means, recent cases show that these agreements could also apply to a low qualified workforce like those in the fast-food industry. American antitrust enforcers announced a shift of enforcement policy against what they consider as per se illegal restraints of trade in the labor market and pledged to bring criminal charges against the individuals who implement such agreements. On the other side of the Atlantic, their European counterparts do not seem to be as alert on this matter. Not that restraints of trade in the labor market cannot be found in Europe, but they are not only treated under competition law analysis. They are often treated under other theories in labor, commercial and contract law. The contrast between these two enforcement policies shed light on the interests that guide American enforcers: in the wake of populism, antitrust appears as a strong answer to the concerns of consumers and the employees, in the same way that antitrust was created and developed to address the adverse effects of economic concentration on wages and the purchasing power. This answer, however, could hit a wall if it expects to resolve all of the problems with one solution. The interactions between antitrust and labor are complex, and an antitrust enforcement policy cannot entirely rely on its enforcer’s zeal. Although strong enforcement against naked restraint on labor is necessary, an appropriate balance should be struck.