A Note on Antitrust, Labor, and “No Cold Call” Agreements in Silicon Valley

Pittman, Russell (2020): A Note on Antitrust, Labor, and “No Cold Call” Agreements in Silicon Valley. Forthcoming in: International Labor Brief

Abstract

Firms that provide training to their labor force may risk ex post opportunistic behavior on the part of their workers or of competing firms. Some arguably restrictive firm practices that have been justified by this concern include employment contracts restricting the freedom of workers to seek employment from the firm’s competitors and agreements among competing firms not to solicit or hire certain of each other’s workers – sometimes termed “non-compete” and “no poach” agreements, respectively. This Note considers these two categories of practices in the context of recent public discussions and enforcement actions by the US competition law enforcement agencies.

• Item Type: MPRA Paper
• Language: English
• Keywords: antitrust, competition, labor markets, non-compete agreements, no-poach agreements
• Subjects: J - Labor and Demographic Economics > J2 - Demand and Supply of Labor; J - Labor and Demographic Economics > J2 - Demand and Supply of Labor > J24 - Human Capital ; Skills ; Occupational Choice ; Labor Productivity; L - Industrial Organization > L4 - Antitrust Issues and Policies; L - Industrial Organization > L4 - Antitrust Issues and Policies > L41 - Monopolization ; Horizontal Anticompetitive Practices; L - Industrial Organization > L8 - Industry Studies: Services > L86 - Information and Internet Services ; Computer Software

References

Daron Acemoglu and Jörn-Steffen Pischke, “The Structure of Wages and Investment in General Training,” Journal of Political Economy 107 (1999), 539-572.

José Azar, Ioana Marinescu, and Marshall Steinbaum, “Labor Market Concentration,” Journal of Human Resources 55 (2020).

José Azar, Ioana Marinescu, Marshall Steinbaum, and Blendi Taska, “Concentration in U.S. Labor Markets: Evidence from Online Vacancy Data,” Labour Economics 66 (2020).

Gary Becker, “Investment in Human Capital: A Theoretical Analysis,” Journal of Political Economy 70: 5, part 2 (1962), 9-49

Gary Becker, Human Capital: A Theoretical and Empirical Analysis, with Special Reference to Education, New York: Columbia Univ. Press (for NBER), 1964; 3d ed. Chicago: Univ. Chicago Press (for NBER), 1993.

Roger Blair and Jeffrey Harrison, Monopsony: Antitrust Law and Economics, Princeton University Press, 1993.

Ioana Marinescu and Herbert Hovenkamp, “Anticompetitive Mergers in Labor Markets,” Indiana Law Journal 94 (2019).

Alfred Marshall, Principles of Economics: An Introductory Volume (8th ed.), London: Macmillan, 1920, at VI.iv.4, p. 565.

Doha Mekki, Statement before the Subcommittee on Antitrust, Competition and Consumer Rights of the Committee on the Judiciary of the U.S. Senate, for a Hearing on “Antitrust and Economic Opportunity: Competition in Labor Markets,” October 29, 2019, https://docs.house.gov/meetings/JU/JU05/20191029/110152/HHRG-116-JU05-Wstate-MekkiD-20191029.pdf.

Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations, London: W. Strahan and T. Caddell, 1776, book 1, chapter 8, “On the Wages of Labour”.

U.S. Department of Justice, Antitrust Division, Competition in Labor Markets, Transcript of Workshop, September 19, 2019, https://www.justice.gov/atr/page/file/1209071/download.

U.S. Federal Trade Commission, Non-Competes in the Workplace: Examining Antitrust and Consumer Protection Issues, Transcript of Workshop, January 9, 2020, https://www.ftc.gov/system/files/documents/public_events/1556256/non-compete-workshop-transcript-full.pdf.