Of course, the most conservative response from an employer would be to remove these provisions regarding worker non-solicitude from all agreements with California employees. If such a provision is not of particular importance to an employer, it may be helpful. At about the same time in 2016, the DOJ and the Federal Trade Commission jointly submitted written guidelines entitled « Antitrust Guidance for Human Resource Professionals. » In this guide, it was found that non-proliferation agreements between employers were inherently illegal in terms of cartels and abuse of dominance and provided a number of questions and answers to HR specialists. The guidelines also highlighted three civil enforcement actions taken by the DOJ against technology giants (1) eBay and Intuit, (2) Lucasfilm and Pixar, as well as (3) Adobe, Google, Apple, Intel, Intuit and Pixar, all of which resulted in approval convictions and the payment of hundreds of millions of dollars in fines and penalties. The DOJ/FTC guidelines do not address the legality of restrictive agreements contained in private employment contracts between an employer and a worker, including non-competition, non-invitation and non-disclosure clauses, which is an important distinction and is the subject of other articles in this series. For more information on this case and other non-competition bans in California, please contact an employment law expert in San Francisco today. The Department of Justice (DOJ) and the U.S. Federal Trade (FTC) Steering Committee are available on the DOJ website. In its guidelines, the DOJ states that « [d] person is likely to violate antitrust law if he … agrees with individuals in another company that they refuse to recruit or recruit employees from another company (so-called « no poaching »). Id.
at 3. The consequences of a non-poaching agreement are considerable. On the same page, the DOJ states that « non-poaching agreements between employers, whether concluded directly or through a third-party intermediary, are in themselves illegal under antitrust law. » As with other offences per se, non-defence agreements are provided for enforcement action, including prosecutions for the relevant authorities and individual decision-makers. The guidelines state that, although it is considering criminal proceedings, it has so far only initiated civil protection measures as a result of non-poaching agreements. California courts have already found that non-request for confidentiality and non-client agreements are not valid or enforceable. However, in some situations, workers` non-call agreements have been respected.