No-poaches and non-competes: Democrats' proposed legislation places employment practices in antitrust crosshairs

In late April, House Democrats revealed some specific proposals in a slate of bills set on changing the application of antitrust law to employment issues. (Photo: Shutterstock)

Much has been made of the anticipated “Blue Wave” in the upcoming November midterms.  Last July, Democrats unveiled a set of legislative priorities—collectively referred to as “A Better Deal”—they intended to trumpet to connect with voters and ride to congressional majorities.  While proposals such as “Medicare for All” and a $15 minimum federal wage garner substantial coverage, others have flown under the radar.

One of these less discussed items—but arguably no less significant—is the call for aggressive expansion of the antitrust laws. The details have varied, but the common tenet seems to be a shift in the goals of antitrust—taking it from a competition-protecting doctrine that has focused primarily on consumer-welfare for the past 40 years, to a multi-purpose regime tasked with promoting social goals such as employment and small business concerns, a philosophy championed by Justice Brandeis that some argue was the original intent of the Sherman Act.