Antitrust in the Age of Talent Wars

In an era defined by fierce competition for skilled labor, where employers compete for talent even when they may not compete to sell their products or services, the intersection of antitrust law and employment practices has emerged as a critical frontier in many jurisdictions globally. As companies fight to attract and retain top talent in increasingly innovative and high-tech markets, regulators around the world (including in the U.S., the EU, and the UK) are intensifying their scrutiny of employer behaviors that may suppress wages, restrict mobility, or otherwise distort fair competition in labor markets. In this Advisory, you’ll find an interactive map of global trends that provides a snapshot of the jurisdictions where, to the best of our knowledge, competition authorities have already launched investigations, issued decisions, and/or adopted or proposed reforms against anti-competitive practices in labor markets. 

In-house lawyers and human resource (HR) professionals should be aware of key trends in this rapidly evolving enforcement landscape and be prepared to manage antitrust risk effectively, including by taking practical steps to prevent, detect, and mitigate such risk.

Key Areas of Antitrust Risk

There are four main types of HR-related conduct that may amount to a competition law breach:

1. Wage-fixing agreements, where two or more companies fix or coordinate on employees’ pay, benefits, and/or other terms of employment

2. No-poach agreements (including no-hire and non-solicitation agreements), where one or more companies agree not to approach and/or hire another company’s employees, either absolutely or without consent

3. Non-solicitation agreements ancillary to a wider underlying commercial arrangement (including M&A deals, secondment arrangements, consultancy agreements, or other service contracts), where one or more parties agree not to recruit the other’s personnel during or shortly after the main contract’s term

4. Information sharing (including through benchmarking activities), where competitors share competitively sensitive information concerning employment-related terms and conditions (e.g., pay, benefits, pension, insurance, or paid leave), either directly or indirectly through a third party

There has also been an increasing focus on non-compete clauses — which are restrictions (typically in employment contracts) on an employee’s ability to work for businesses that compete with their former employer for a specific period after their employment ends.¹ Historically, these clauses have not been a focus for antitrust enforcers, as they generally govern the individual employer-employee relationship (rather than being agreements between companies), and discrete non-competes were generally viewed as unlikely to reduce competition in a well-defined antitrust labor market. However, there have recently been proposals (e.g., in the U.S. and the UK) to ban or cap the length of such clauses based on competition-related concerns that employee non-competes are broader than necessary to protect an employer’s investment and may reduce labor mobility. These clauses may also be scrutinized under rules against abusive conduct by dominant companies when they are instrumental to a dominant firm’s strategy to limit competitors’ access to key workers.

A Map of Global Trends

Competition authorities globally are intensifying their scrutiny of anticompetitive practices in labor markets. In recent years, labor-related practices have become a key enforcement priority in many jurisdictions, prompting investigations, enforcement actions, and/or regulatory reforms. The U.S. has been a historical leader in HR-related enforcement, but this momentum has recently been picked up by authorities around the world.

In the U.S., the Antitrust Division of the U.S. Department of Justice (DOJ) and the Federal Trade Commission (FTC) have been active in enforcing HR-related infringements since 2010,² especially in the last five years. Since late 2020, DOJ has criminally prosecuted a series of no-poach and wage-fixing cases. Nearly all of DOJ’s attempts to secure a criminal conviction on labor-related charges have been unsuccessful,³ but in April 2025, DOJ secured its first conviction of an individual in a labor-related criminal antitrust trial.⁴

Meanwhile, between 2020 and 2022, the FTC entered a series of settlements that required the parties to eliminate non-compete clauses or prohibit them from enforcing them.⁵ In 2023-2024, the FTC issued a rule broadly banning most non-compete clauses, but after a federal court enjoined the rule’s implementation, the FTC shifted back to enforcing non-competes on a case-by-case basis.⁶ Additionally, in February 2025, the FTC created a Joint Labor Task Force to investigate and prosecute labor-related conduct, including no-poach, non-solicitation, no-hire, and wage-fixing agreements.

In the EU, the European Commission (EC) issued its first fine in a no-poach case in June 2025. The UK has also recently set its sights on HR-related competition infringements. Following its first labor market infringement decision in March 2025 concerning information exchanges on workers’ pay, in September 2025, the UK Competition and Markets Authority (CMA) published new guidance on the application of competition law to recruitment, retention, and remuneration practices; it has also made tackling potential competition issues within UK labor markets a priority in its 2025-2026 annual plan.

The map below provides a snapshot of the jurisdictions where, to the best of our knowledge, competition authorities have already launched investigations, issued decisions, and/or adopted or proposed reforms against anti-competitive practices in labor markets.

The color-coded system indicates the level of enforcement activity by jurisdiction:

• Red: Higher-risk jurisdictions where authorities have conducted investigations, imposed fines, and/or issued guidance.
• Orange: Medium-risk jurisdictions where authorities have expressed interest in the topic and/or announced plans for legal or policy changes.
• Grey: Jurisdictions where no information is available and/or which do not seem to have yet expressed a position on the matter.

Key Watchouts

• Generally considered as “serious competition infringements.” Wage-fixing, no-poach, and non-solicitation agreements that are not reasonably ancillary to a legitimate agreement are typically classified as “per se” or “by object” restrictions (i.e., the conduct is presumed illegal without needing to analyze its competitive effects). Notably, like any other cartel, they do not need to be in writing, formal, or mutual to be illegal — so-called “gentlemen’s agreements” and unilateral commitments (e.g., not to hire the other party’s employees) may also be unlawful, attract high fines, and in some jurisdictions, potential criminal liability, director disqualification orders, and exclusion from public tenders.
• Not just about employees. Labor-related competition law infringements are not limited to traditional employment relationships. Investigations around the world have also considered practices involving freelancers and contracted workers. For example, in March 2025, the CMA fined four broadcasters⁷ for exchanging information on fees paid to freelance workers.
• Wider concept of competitors. Competitors for labor may not necessarily compete to sell products or services to customers. Companies operating in different sectors or at different levels of the supply chain can still compete for the same talent, making them rivals in recruitment.
• “Genuine” multi-employer collective bargaining likely to fall outside the prohibition. Multi-employer collective bargaining — where multiple employers or one or more employers’ industry body or trade association negotiate with workers’ organizations to determine wages, working hours, or other terms, or regulate relations between them — is likely exempt from antitrust scrutiny provided certain conditions are met (notably, that no competitively sensitive information beyond what is strictly necessary is shared).⁸
• Trade association and benchmarking activity may be caught. Companies should be cautious when engaging in trade association and/or benchmarking activities. Competition authorities have taken enforcement action against trade associations for recommending or imposing on their members no-poach, non-compete, and other restrictive clauses (typically in their respective codes of conduct), as well as for facilitating the exchange of competitively sensitive HR-related information. Benchmarking activity (including when conducted via third-party consultants) has also been under scrutiny. HR-related information, especially salary and benefit information, shared through benchmarking activities may raise antitrust issues where the information is not, or not sufficiently, aggregated and anonymized.
• No-poach agreements included as part of a wider underlying commercial arrangement may not infringe competition rules if appropriately tailored. A number of authorities, including the EC, the CMA, and the French competition authority, have recognized that non-solicitation/no-poach clauses concluded in the context of a wider commercial relationship or M&A deals may not be anticompetitive under certain conditions. This is also generally true under U.S. law. While there are some differences in approach (the EC has taken a stricter stance so far), these clauses are generally permissible where the restrictions are objectively necessary to enable the main transaction, are proportionate and are limited in duration, subject matter, and geographic scope.
• Higher risk in highly technical and specialized sectors where talent is a key asset and plays an important role in companies’ competitiveness, as well as in very low-level employment, where the rationale for a non-compete to protect trade secrets is less plausible. Higher-risk sectors include healthcare, sports, information technology, high-tech (including artificial intelligence), engineering services, and professional services. For instance, sandwich shops have faced lawsuits for their use of non-competes in employment relationships.

Practical Steps To Assess and Mitigate Risk

Businesses should educate their HR and senior management functions around these trends,⁹ particularly when they are ramping up hiring and/or where they are looking for skills that are in high demand but short supply.

Aside from encouraging whistleblowing activity and relying on leniency applications, competition authorities are increasingly utilizing new tools to detect antitrust violations. As such, beyond maintaining comprehensive and updated compliance protocols and regularly training staff, companies must be prepared to respond swiftly and effectively in the event of an investigation.

As a reminder, many jurisdictions offer leniency programs for self-reporting of wrongdoing and/or give companies credit (including a potential discount on the applicable fine) for effective compliance efforts, internal audits, and internal reporting arrangements. As such, robust internal policies and procedures help both prevent, detect, and mitigate anticompetitive conduct as well as limit companies’ potential liability if anticompetitive conduct is uncovered.

© Arnold & Porter Kaye Scholer LLP 2025 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.