- Duke University and Duke University Health System have agreed to pay $54.5 million to settle claims that Duke and the University of North Carolina (UNC) agreed not to hire each other's medical faculty members, in violation of state and federal antitrust laws (Seaman v. Duke University, No. 15-cv-00462 (M.D.N.C. May 20, 2019)).
- UNC settled its part of the dispute last year but, as a state government entity, paid no monetary damages. The Duke settlement — which works out to approximately $10,000 per class member — is the second-largest per-capita recovery in the history of antitrust employment litigation, according to the court.
- The settlement also requires Duke to, among other things, appoint an antitrust compliance offer, conduct antitrust training for relevant personnel, and permit the U.S. Department of Justice (DOJ) to inspect documents and interview employees.
Entering into no-poach agreements is risky business for employers — especially now that the federal government has launched a new crackdown initiative.
In an October 2016 Antitrust Guidance for Human Resource Professionals, DOJ said it would consider criminal charges against employers entering into so-called "naked" or per se no-poach and wage-fixing agreements. Such agreements are considered automatically unlawful under the antitrust laws, even if they don't ultimately have an anti-competitive effect. So far, however, DOJ has declined to press criminal charges.
Franchise owners, including several fast-food restaurants, have been a key target of no-poach charges. Low-wage workers are considered particularly vulnerable because they often have fewer opportunities for mobility and advancement.
Naked no-hire agreements are clearly problematic, but employers may also unwittingly violate the antitrust rules. Experts previously told HR Dive that employers should not share information about recruiting and salaries, even with companies that are not direct competitors, unless it's necessary to do so as part of a joint venture, merger or acquisition.
Employers may also wish to conduct an audit of their employment agreements, ensuring there are no unlawful antitrust provisions lurking there, even if they are never enforced.