North America

June 23, 2023: The Competition Bureau Canada ("Bureau") amends its Competition Act expressly protecting competition in labor markets by prohibiting agreements that fix wages and restrict job mobility.

May 30, 2023: The Bureau publishes its Enforcement Guidelines on wage-fixing and no-poaching agreements.

September 22, 2023: The Mexican Competition Authority (Cofece) announces, alongside the US Department of Justice Antitrust Division and Canada's Competition Bureau, the launch of a joint initiative to deter, detect and prosecute possible anti-competitive conduct, including labor market activities involved in the provision of goods and services related to the 2026 FIFA World Cup.

September 23, 2021: Cofece fines 17 football clubs and eight individuals for (i) setting a maximum salary cap for female players and (ii) entering into a no-poach agreement by which a club would need the authorization of another club in order to be able to sign a player, even if the employment contract had expired. The fines amount to approx. € 4.9 million.

May 2024: In its lawsuit to block the proposed merger between Capri and Tapestry, the Federal Trade Commission relies in part on a labour market related theory of harm. It claims that the proposed merger would eliminate competition for employees that could result in lower wages and worse working conditions.

April 2024: The U.S. Federal Trade Commission votes 3-2 to finalize and promulgate a rule banning most non-compete clauses in employer-employee contracts. There are two categories of non-competes that are not banned under the rule: (i) existing non-competes with senior executives, and (ii) non-competes in “bona fide” sales of a business. For more details on the scope, please read our alert here. Absent an effective legal challenge delaying or barring enforcement, the rule will go into effect 120 days following its publication in the Federal Register, which we expect to follow soon.

March 2024: The U.S. Supreme Court denies McDonald’s petition for review of an August 2023 ruling from the Seventh Circuit Court of Appeals reviving a 2017 lawsuit against McDonald’s for allegedly restricting competition through no-poach agreements. The Seventh Circuit ruling remanding the case to the district court stands. 

March 2024: JBS USA Food Company and Tyson Foods Inc. enter into a settlement for $127.3 million, resolving claims that the companies conspired to suppress workers’ wages through the exchange of compensation information.

February 2024: Commissioner Alvaro Bedoya gives a speech at the Global Competition Review Global Summit arguing that the FTC should challenge worker misclassification as a violation of the FTC Act’s ban on unfair methods of competition.

November 2023: The District Court for the Northern District of Texas grants a motion by the Department of Justice (DOJ) to drop its charges in its last remaining criminal no-poach case.

September 2023: The District Court for the Western District of Kentucky denies a plaintiff's motion to certify a settlement class in a case challenging the no-poach provisions in a fast food company's employment contracts. The plaintiff proposed to certify a class of employees and managers, and award US$5 million in damages, as well as injunctive relief. The Court held that the record was "less clear" whether plaintiff had satisfied the adequacy, typicality and predominance requirements to certify a settlement class, and invited the plaintiff to submit an amended motion for class action settlement.

August 2023: The Seventh Circuit Court of Appeals vacates the district court's prior dismissal of employee plaintiffs' claims (filed in 2017) against McDonald's for allegedly restricting competition through no-poach agreements. The Federal Trade Commission (FTC) and DOJ had submitted a joint amicus brief in November 2022 supporting the plaintiffs' challenge to McDonald's "no hire"/no-poach franchise restrictions. The case is remanded to the district court for further investigation as to the proper standard (per se or rule of reason) for review of the challenged agreements.

August 2023: The DOJ submits an amicus brief in support of an appeal to the Second Circuit by former employees of Saks Fifth Avenue, challenging the store's no-hire agreements with several "high fashion" designers. The suit was originally filed in 2020, and the district court granted the defendants' motion to dismiss in February 2023.

August 2023: The FTC reaches a settlement with health information company Surescripts which, among other things, prohibits Surescripts from engaging in exclusionary conduct and executing or enforcing non-compete agreements with current and former employees. The FTC sued Surescripts in 2019, alleging that the company employed illegal vertical and horizontal restraints in order to maintain its monopolies within "e-prescribing" markets.

May 2023: The DOJ reaches a settlement with poultry processing companies, resolving charges that the companies conspired to suppress workers' wages through the exchange of compensation information.

May 2023: Two labor organizations, SEIU Healthcare Pennsylvania and the Strategic Organizing Center, file an antitrust complaint with the DOJ against the University of Pittsburgh Medical Center. The plaintiffs call on the DOJ's antitrust division to investigate the hospital's alleged abuse of its dominant market position by suppressing wages and increasing workloads.

May 2023: The District Court for the Southern District of Ohio approves US$5.2 million settlement in suit over no-poach pact with three defense intelligence contractors.

April 2023: A federal judge in Connecticut grants the defendants' motions for judgment of acquittal, holding that the charged no-poach agreements were not per se illegal as a matter of law. The DOJ filed the indictment in December 2021, alleging that the defendants conspired to suppress competition in the aerospace industry by restricting the hiring and recruiting of engineers and other skilled-labor employees.

March 2023: The DOJ loses its third jury trial in its push to criminally prosecute labor-related antitrust violations when a jury in the district court for the District of Maine acquitted four home healthcare staffing executives charged with violating the Sherman Act through alleged no-hire and wage-fixing agreements. The indictment was issued in January 2022 and the DOJ survived defendants' motion to dismiss, but was ultimately unable to prove its case at trial.

March 2023: Insurance company Fidelity enters into a US$3.5 million settlement agreement with the New York Attorney General to terminate any existing no-poach agreements and non-solicitation with competitors.

March 2023: The FTC orders two glass manufacturers and two Michigan-based security firms to drop non-compete restrictions that they imposed on their workers. These orders resolved the FTC's first-ever antitrust enforcement actions alleging anticompetitive use of employee non-compete provisions (brought in January 2023).

March 2023: Perdue Farms, a meat processing company, agrees to pay US$60.7 million to settle a civil wage-fixing case that had been pending since 2019.

October 2022: The DOJ fines a healthcare staffing company US$134,000 for engaging in a conspiracy with a competitor to fix the wages of school nurses.

April 2022: A federal jury in Colorado finds that DaVita (provider of kidney dialysis services) and its former CEO were not criminally liable for entering into no-poach agreements with competitors, as alleged by the DOJ.

April 2022: A federal jury in Texas finds former healthcare staffing executive (Neeraj Jindal) guilty of obstructing an FTC investigation into wage-fixing and sharing competitively sensitive information regarding physical therapists' rates. However, two other employees are found not guilty.