Employment Law This Week: Crack Down on Non-Solicitation Agreements, DOL Opinion Letters, New NLRB Member, State Law Developments

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This week’s stories include …

1. DOJ Cracks Down on Non-Solicitation Agreements

Our top story: The Department of Justice (DOJ) makes good on its promise to crack down on non-solicitation agreements. The DOJ’s Antitrust Division has entered into a settlement with two of the world’s largest railroad equipment manufacturers, part of the broader antitrust investigations announced by the agency in October 2016. According to the DOJ, the two companies had entered into a no-poaching agreement that “restrained competition for employees.” The civil complaint is the first case brought by the DOJ since its 2016 antitrust guidance statement. In a press release, the DOJ noted that this particular case was a civil one because the agreement ended before the 2016 guidance, but the agency said that it would criminally prosecute any violations that post-dated the guidance. Eddie Loya[5], a former federal prosecutor and Member of the Firm at Epstein Becker Green, has more:

“You had two of the world’s largest rail supply companies who, according to the DOJ, had a no-poaching agreement that was in place over the course of several years. The evidence in that case showed that there were senior executives at the two companies that had agreed both orally and in writing that they would have a no-poaching agreement. Although there was a written agreement in this case, the DOJ made it clear in announcing the settlement that they would prosecute cases where there was an oral agreement or where there was a handshake and a nod. And the DOJ is going to look at the company’s relationships with one another, how business is done over time, and the entire circumstances to see whether or not companies, in fact, had an agreement not to compete with one another for employees. And so, companies need to be extra vigilant here and not be complacent and be under the misimpression that these types of cases are only set aside for the most egregious offenders.”

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