Does a human being have the right to contract with whomever he wants to sell his labor to?
Seems to me that these agreements might interfere with that, although the article does not seem to give enough information to tell exactly how they were structured.
An interesting flip on the right-to-work laws. Those are usually targeted at union-negotiated exclusivity provisions, e.g. if a company and a union sign an agreement that the company will hire only members of that union, states with "right-to-work" laws hold any such contracts unenforceable. It'd be interesting if the principle were extended to ban any contract that interfered with the ability of two parties to come to terms, though. For example, if I have a right-to-work as a programming employee, do I also have a right-to-consult as a programming contractor, rendering any exclusivity provisions standing in the way void?
It seems to me like the principle should be similar. If a company has an exclusive-vendor agreement with an engineering-consulting firm for all its engineering services, that seems very much like the case where the company has an exclusive-hire agreement with an engineering union for all its engineering employees (just think of the union as a labor-selling firm). In both cases they've agreed to only purchase a certain category of services from a certain category of providers. I'd be somewhat amenable to banning all these kinds of exclusivity agreements (including non-compete, no-poaching, union-labor-only, exclusive-vendor, etc.).
The problem is that even if you made a contract between the colluding companies unenforceable, the companies would be glad to collude anyways because it is in their best interest to maintain the agreement.
>Does a human being have the right to contract with whomever he wants to sell his labor to?
Yes, a person does, but I don't think that question really gets to crux of the matter. I think the question is whether these companies were forming a cartel of sorts. Not a cartel of widget or oil production, but a cartel of jobs production. Its actually not clear to me that existing anti-trust law covers this case, and, from the DoJ's actions, it isn't clear to them either.
If the Justice Department was confident of its case, we'd be seeing a lot more publicity in order to put pressure on the companies involved. The fact that DoJ isn't raising a ruckus over this means they think they have enough to go to trial, but not necessarily win. In circumstances like these, where the law isn't exactly clear on the topic, both sides seek to settle because neither wants to be proven wrong in open court.
In most states, non-compete agreements are upheld by courts. In California, non-competes are almost always thrown out by courts [1]. In other states, such as NY or OH, non-competes are always interpreted in favor of the company.
What was being done by the companies is an informal arrangement to make non-compete agreements exist even in the cases where the employee didn't sign one.
Notes:
1 - Pretty much the only non-competes upheld in CA courts are ones where the signing party sells a business or is a major partner.
Seems to me that these agreements might interfere with that, although the article does not seem to give enough information to tell exactly how they were structured.