In what has commonly been referred to as the “Great Resignation,” nearly 50 million people voluntarily resigned from their jobs in 2021.[1] The majority of those resigning sought a higher paying or better opportunity with another employer.[2] Well before the impacts of the COVID-19 pandemic, millennials – the largest generation in the workforce[3] – garnered a reputation for job-hopping.[4]

In an era of unprecedented employee mobility, employers face increasing challenges retaining top talent. Compounding the social challenges with retaining talent is the increased scrutiny on non-compete agreements between employers and employees by courts, legislators, and regulators.[5] As a result, employers may seek other means to protect their interests and avoid the disruption and costs associated with employee departures, such as an agreement with their competitors not to poach each other’s employees or an agreement to set a cap on wages. Employers tempted to proceed along these lines must be aware of the significant antitrust exposure that can result from these types of arrangements.

No-Poaching and Wage-Fixing Agreements

“No-poach agreements” are any agreement between competitors not to hire, solicit, recruit, or cold-call each other’s employees, while “wage-fixing agreements” are any agreement between competitors to: (1) fix a particular salary, set salaries at a certain level or within a certain range, or follow certain guidelines; (2) increase salaries by an agreed percentage;...

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