ASA has published an updated issue paper, “Antitrust Considerations for Staffing Agencies Seeking to Retain Their Employees.” Written by Arthur L. Herold, partner with the association’s outside antitrust law firm Webster, Chamberlain & Bean LLP, the paper discusses important recent developments with respect to civil and criminal antitrust enforcement against staffing agencies and other employers—enforcement that pertains to companies’ efforts to protect their employees from being recruited by others, and that could require modification of some staffing agencies’ contracts with clients, managed service providers, or subcontractors.
The federal antitrust laws require staffing agencies to compete for employees. Once a staffing agency hires an employee, it has the right to seek to retain that employee in a way that does not restrain competition in violation of the federal antitrust laws. This raises the issue of the legality of conversion fee provisions, as well as no-hire, also known as no poach, agreements. The ASA issue paper discusses these issues in detail.