A while back we discussed the DOJ’s investigation into allegations that technology giants in Silicon Valley were effectively preventing computer programmers from making job changes by agreeing not to poach their competitors’ employees.

Last week the DOJ filed a lawsuit along with a proposed settlement with Apple Inc., Adobe Systems Inc., Google Inc., Intel Corp., Intuit Inc. and Walt Disney Co.’s Pixar that will prevent these employers from agreeing not to poach one each others’ employees.  

Basically it goes something like this.  We agree that my recruiters won’t cold call your employees and your recruiters won’t cold call my employees.  That way we can keep them from moving – or at least slow down movement.  The DOJ didn’t like this practice because it violates anti-trust laws.   Here is a redacted email that was between Google and a prospective Apple candidate:

From: XXXXX XXXXX <XXXXX@google.com>
Date: XXXXXXX XX, 2008 X:XX:XX AM PDT
Subject: Re: Google Opportunities- Follow up email…

Thanks for getting back to me.  I don’t believe that we have been in
contact previously – apologies if I am wrong about this.

From your reference to the [APPLE DIVISION], I take it that you are
currently working there.  If this is the case, we will not be able to
proceed with your application.  Google has an agreement with Apple
that we will not cold call their staff.  If you are not currently
working at Apple and are interested in learning more about [A GOOGLE DIVISION]
please let me know and I would be happy to chat with you.

Thank you again for returning my email

 

What’s interesting about the practice is the effect of California’s disdain for non-competes.  In Texas an employer could simply attempt to lock down the employee for some reasonable period of time with a non-compete agreement.  Not in California – Exhibit A is Mark Hurd who recently went from HP to Oracle.  Would the practice these companies allegedly engaged in have been necessary if there was an enforceable non-compete?  Probably not.  The question remains how many other employers, in other industries, have the same or similar practice?