​Labor Antitrust

Labor Antitrust

No-Poach, Wage-Fixing, Non-Competes, and Union Restraints of Trade

Antitrust law now polices the labor market as aggressively as it polices any product market. An agreement with another company about hiring or pay can be a federal felony. A restrictive covenant can draw a state enforcement action, an FTC order, or a treble-damages class action. And on the other side of the same body of law, businesses harmed by union conduct that exceeds the antitrust laws’ labor exemptions have claims most lawyers never think to bring.

Bona Law works the business side of every one of these problems. We defend companies and executives in criminal and civil no-poach and wage-fixing matters, design hiring and compensation practices that hold up, litigate non-compete and non-solicitation disputes for employers and executives, defend against buyer-side market-power claims, and challenge labor unions when their conduct operates outside the statutory and nonstatutory labor exemptions. We represent businesses and executives — not unions, and not employee classes. Because we never bring class actions, we defend them without conflict.


Representative Experience

  • Markson v. CRST International, Inc. (C.D. Cal.) — defense of a national trucking company in a Section 1 no-poach class action alleging suppression of driver wages and mobility — one of the leading no-poach matters in the transportation sector.
  • DOJ no-poach investigation of a Fortune 500 company — closed without charges.
  • Criminal no-poach investigation (D. Nev.) — represented an individual through cooperation connected to a former employer’s DOJ leniency petition in an investigation involving healthcare workers.
  • Drabinsky v. Actors’ Equity Association, 106 F.4th 206 (2d Cir. 2024), cert. denied — argued a Sherman Act group-boycott appeal against a national labor union, presenting a first-impression question on the scope of the statutory labor exemption, with the AFL-CIO participating as amicus curiae; pressed the issue to the U.S. Supreme Court via cert petition.
  • Defense of a software-company CTO (Delaware) against non-solicitation and no-hire claims asserted by a former employer.
  • Antitrust strategy, doctrinal analysis, and briefing support to lead trial counsel in a federal no-poach/ancillary-restraint action — challenging a non-solicitation provision in a collaboration agreement between two large competitors in a national services market.
  • No-poach, wage-fixing, and labor-market compliance counseling for corporate clients — including drafting, negotiating, and litigating non-compete, non-solicitation, and no-hire agreements for employers and executives, and antitrust advice to CEOs on the antitrust/labor interface during labor negotiations.


Why Bona Law for Labor Antitrust

  • Every mode of the problem, one firm. Criminal defense and leniency strategy, class-action defense, covenant litigation and counseling, monopsony litigation, union-boundary litigation, and appeals.
  • Government-side experience. Our team includes a former senior California Deputy Attorney General who filed the State’s no-poach enforcement action against major technology companies, and defense counsel who have persuaded the DOJ to close no-poach investigations without charges.
  • No conflicts with your adversaries. We do not represent unions and we do not bring employee class actions — so when we defend you or press your claim, no institutional relationship is pulling the other way.
  • We wrote the analyses others cite — from the leading survey of antitrust in labor markets to the doctrinal work on the labor exemptions that courts and practitioners are now testing.
  • Employment lawyers: refer the problem, not the client. When an antitrust issue surfaces inside your client’s employment matter, we handle the antitrust piece and send your client back.


A No-Poach Agreement Can Be a Federal Felony

The Department of Justice treats naked no-poach and wage-fixing agreements as per se criminal violations of the Sherman Act — the same statute that reaches price-fixing cartels, with the same penalties: up to 10 years in prison for individuals and fines of up to $100 million for companies. The threat is no longer theoretical. In 2025, a jury delivered the government’s first criminal wage-fixing conviction at trial, and the healthcare staffing executive was sentenced to 40 months in prison (the conviction is on appeal). The DOJ and FTC’s January 2025 worker guidelines spell out the agencies’ view that these agreements — and the information exchanges that surround them — are enforcement priorities, and the DOJ’s new whistleblower rewards program pays informants a share of recoveries in criminal Sherman Act cases.

Bona Law defends companies and individuals at every stage: grand jury subpoenas and CIDs, internal investigations, leniency strategy, charging negotiations, and trial. A member of our team persuaded the DOJ to close a no-poach investigation of a Fortune 500 company without charges, and we have guided an individual client through cooperation connected to a former employer’s DOJ leniency petition in a criminal no-poach investigation. Our Antitrust Investigations practice covers the full defense playbook, and our State Attorney General practice covers the states — which are now running their own no-poach enforcement programs.


Defending No-Poach and Wage-Suppression Class Actions

Criminal exposure is only half the risk: the same conduct draws follow-on civil class actions seeking treble damages, and plaintiff firms now file labor-side antitrust classes against franchisors, staffing companies, hospital systems, universities, and sports leagues. We defended a national trucking company in Markson v. CRST International (C.D. Cal.), one of the leading Section 1 no-poach class actions in the transportation sector. These cases are defensible — in June 2026 a federal court denied class certification outright in a major no-poach case against outpatient medical centers — and our class action defense practice has been litigating certification, ancillary-restraint, and damages issues in labor markets since the current wave began. Our attorneys wrote analyses on the Seventh Circuit’s revival of a per se no-poach theory against McDonald’s, the MMA fighters’ class certification win against the UFC, and the ancillary-restraints doctrine on which these cases so often turn.


Non-Competes, Non-Solicits, and No-Hire Agreements

The FTC’s nationwide noncompete ban is dead — but the enforcement risk is not. The Commission predicted the ban’s practical effect before it ever took hold, and it has since pivoted to case-by-case enforcement, entering orders against employers’ noncompete practices and sending warning letters across the healthcare and services industries — while the states have built a patchwork that changes by the year. California, Minnesota, North Dakota, Oklahoma, and Wyoming ban most employment non-competes outright, Washington’s comprehensive ban takes effect in 2027, and Virginia and Tennessee tightened their statutes in 2026. New York has come close, and employers increasingly need alternatives to non-competes that still protect the business.

We work both sides of the covenant: drafting and defending programs employers can actually enforce, and extracting executives from covenants that overreach. We defended a software-company chief technology officer against non-solicitation and no-hire claims brought by a former employer, and we counsel clients on enforceability across jurisdictions — including whether an out-of-state noncompete is enforceable in California and how California treats restrictive covenants. Our attorneys have tracked every turn in the state statutes — from Minnesota’s ban to California’s 2023 escalation, California’s refusal to honor out-of-state forum-selection workarounds, and the §16600 standard after Ixchel. 


Monopsony: Buyer Power in Labor Markets

Monopsony — buyer-side market power — is the economic engine of modern labor antitrust. Wage-suppression class actions, franchise no-hire cases, and athlete-compensation litigation all run on monopsony economics, and courts are still drawing the doctrinal lines — from the Supreme Court’s NCAA v. Alston decision to the Seventh Circuit’s 2025 rejection of an athlete’s challenge to the NCAA Five-Year Rule. Our attorneys have litigated buyer-side market-power claims under both the Sherman Act and California’s Cartwright Act and have defended companies against wage-suppression theories built on monopsony economics — experience that compounds with our antitrust litigation practice.


When Union Conduct Exceeds the Antitrust Exemptions

Labor unions enjoy powerful — but bounded — protection from the antitrust laws. The statutory and nonstatutory labor exemptions shield legitimate collective bargaining. They do not shield everything a union does. When a union organizes a group boycott that reaches beyond a labor dispute, combines with employers to exclude a competitor, or leverages its position against businesses outside the bargaining relationship, the Sherman Act applies — and Bona Law is one of the few firms that has actually litigated that boundary.

We represented a Tony Award-winning theatrical producer in Drabinsky v. Actors’ Equity Association, 106 F.4th 206 (2d Cir. 2024), a Sherman Act group-boycott action against a national union. Luke Hasskamp argued the appeal, which presented a first-impression question on the scope of the statutory labor exemption; the Second Circuit’s decision resolved a circuit split, with the AFL-CIO appearing as amicus curiae, and we pressed the question via cert petition to the U.S. Supreme Court. Our attorneys have analyzed union-antitrust collisions for years — from the Hollywood writers’ war with the talent agencies to the latest court decisions mapping the nonstatutory exemption’s edges. And as states experiment with laws extending union-style bargaining to independent contractors, our attorneys have published the leading analysis of why California’s gig-driver bargaining law cannot confer federal antitrust immunity (Part 2).

Our alignment is straightforward: we represent businesses and executives. We do not represent unions. If union conduct is strangling your business and everyone tells you “they’re exempt,” the real question is whether the exemption actually covers what they did. Often it does not — and we have litigated on exactly that line, through the court of appeals.


Counseling, Compliance, and HR Training

Most labor-antitrust disasters start in ordinary business moments: a benchmarking survey, a franchise agreement clause, a handshake understanding between HR leaders, a trade-association salary discussion. Remember: the antitrust laws encourage “stealing” talent — poaching employees is what competition requires, and agreements not to compete for workers are where the trouble starts. We build compliance programs and train HR teams and recruiters on the rules the agencies actually enforce — wage and benefits information exchange, joint-venture and ancillary-restraint design, franchise hiring provisions, and the documentation habits that decide later cases. Steven Cernak spent decades as in-house antitrust counsel in the automobile industry coordinating advice for CEOs on the antitrust/labor interface during labor negotiations — exactly the pressure-tested judgment these questions need.


Fees

Compliance audits and HR training travel well as fixed-fee engagements. For litigation, we offer traditional hourly, hybrid, and — for the right affirmative case, including businesses harmed by union conduct or buyer-side market power — contingency arrangements, and we have experience working with litigation funders.


Labor Antitrust Issues Arise in Every Industry

We have handled labor-antitrust issues across healthcare and staffing, transportation and logistics, agriculture and food processing, construction and the skilled trades, energy and commodities trading, technology, sports, and entertainment.


Frequently Asked Questions

Is a no-poach agreement really a crime?

A naked agreement between companies not to hire each other’s employees — one not tied to a legitimate collaboration — can be prosecuted as a felony under Section 1 of the Sherman Act. The DOJ has secured a wage-fixing conviction at trial and a 40-month prison sentence. Agreements that are ancillary to a legitimate venture are analyzed differently, which is exactly why the line needs an antitrust lawyer.


The FTC’s noncompete ban was struck down. Are we in the clear?

No. The FTC now attacks noncompete practices case by case, several states ban or sharply restrict non-competes outright, and overbroad covenants increasingly draw Sherman Act and state-law claims. The question is no longer “is there a federal rule” but “does your program survive the patchwork.”


Can we sue a labor union under the antitrust laws?

Sometimes — the labor exemptions protect legitimate collective bargaining, not everything a union does. Conduct outside a genuine labor dispute, or combinations between unions and employers that target a business, can support Sherman Act claims. We have litigated this boundary.


DOJ just served a subpoena about our hiring practices. What now?

Treat it as criminal from day one: preserve documents, separate counsel for the company and implicated executives, and evaluate leniency immediately — the first company through the door can receive substantial protection. Then call antitrust counsel who has been on both sides of these investigations.


Do wage surveys and benchmarking violate the antitrust laws?

They can. Exchanging current or future compensation information with competing employers — directly or through a consultant — is an enforcement priority under the agencies’ 2025 worker guidelines. Properly structured surveys remain lawful; the safeguards matter, and we build them.


Do you represent employees or unions?

No. We represent companies and executives — the business side of labor antitrust. We defend employers, we counsel them, and we bring affirmative claims for businesses harmed by union conduct or buyer-side market power.


Labor Antitrust Resources


Talk to a Labor Antitrust Lawyer

If your company has received a subpoena or CID about hiring practices, been named in a no-poach or wage-suppression class action, needs a covenant program that survives the state patchwork, or is being squeezed by union conduct the antitrust exemptions don’t cover — contact Bona Law for an initial discussion.

Practice Areas

Antitrust Counseling and Compliance Challenges to Anticompetitive and Unlawful Government Action Antitrust Investigations ​Labor Antitrust Lanham Act and False Advertising Antitrust Class Actions Antitrust Litigation Appellate Litigation Complex Commercial Litigation Mergers & Acquisitions Regulatory & Political Advocacy State Attorney General Antitrust Monopolization and Exclusionary Conduct Agriculture and Food Blockchain and Bitcoin Construction and Building Materials Energy and Commodities Trading Healthcare, Pharmaceutical, and Medical Device Antitrust Industry-Specific & International Experience Real Estate and Housing Telecommunications and Platforms