Duke Professor Denied Job At UNC Brings Antitrust Lawsuit Alleging Non-Poaching Agreement Stifled Lateral Faculty Moves

Following up on my previous post, North Carolina Retains 64% Of Faculty Who Receive Lateral Offers; Lawsuit Challenges Alleged Agreement With Duke To Forswear Lateral Hiring Of Each Other's Faculty:  Inside Higher Ed, Good Neighbors or Conspirators?:

Colleges and universities lure top faculty members away from competitor institutions all the time, and the practice is (generally speaking) entirely legal. But while some relish it, others consider faculty poaching, or actively recruiting faculty members from competitors, bad form and try to avoid doing it regularly -- especially to institutions in the same geographic area.

A new antitrust lawsuit alleges much more than a neighborly understanding between Duke University and the University of North Carolina at Chapel Hill, however. The suit, brought against Duke by a medical faculty member there, rather alleges a binding no-hire agreement between the two Research Triangle institutions prevented her from getting a job at Carolina that otherwise would have been hers. The faculty member alleges there are others like her, and she’s proposed a class action.

Danielle Seaman, an assistant professor of radiology at Duke, says she’s been trying to get a job at Carolina for three years. She allegedly interviewed and was told by Carolina's chief of cardiothoracic imaging in 2015 that her otherwise strong chance had been rejected because the respective deans of the medical schools at Carolina and Duke had a few years earlier formally agreed to not hire faculty members between institutions at the same rank, in order to control faculty salaries. ...

In a second email, sent in February after Seaman expressed interest in applying for an advertised position as a thoracic radiologist, the chief said he was prohibited from hiring her.

“I agree that you would be a great fit for our cardiothoracic imaging division,” the chief allegedly wrote. “Unfortunately, I just received confirmation today from the dean’s office that lateral moves of faculty between Duke and [Carolina] are not permitted. There is ‘reasoning’ for this guidance which was agreed upon between the deans of [Carolina] and Duke a few years back. I hope you understand.”

In a third clarification email sent in April, the chief allegedly wrote that “the ‘guideline’ was generated in response to an attempted recruitment by Duke a couple of years ago of the entire [Carolina] bone marrow transplant team; [Carolina] had to generate a large retention package to keep the team intact.”

Seaman says that the alleged agreement amounts to illegal conspiracy on the parts of Duke and Carolina to suppress employee compensation, and to “impose unlawful restrictions on employee mobility.” ...

Seaman’s case has been picked up by a Silicon Valley-area law firm that successfully litigated a recent nonsolicitation class action lawsuit on behalf of employees at major local technology firms. Dean Harvey, an attorney at Lieff, Cabrasier, Heimann and Bernstein, in San Francisco, said the employers in Seaman’s case acted even more “egregiously” than the tech firms that recently settled for a proposed sum of $415 million, in that they pledged not only not to solicit each other’s employees but not to hire them at all for lateral moves (without a promotion).

“Faculty members are entitled to a competitive marketplace for their talent,” Harvey said. “They have the same rights as any other workers, and although higher education institutions can be a little cloistered at times, they face the same rules and laws as everybody else.” ...

Michael A. Olivas, the William B. Bates Distinguished Chair in Law at the University of Houston Law Center and director of its Institute for Higher Education Law and Governance, and former general counsel for the AAUP, said there’s no law or AAUP policy for or against faculty poaching. (There is, however, an AAUP-supported deadline of March 15 for faculty offers to prevent leaving institutions in the lurch as professors accept late offers.) Gentlemen’s agreements between peer institutions in the same region may exist to prevent the constant flow of faculty between institutions or to the wealthier ones, but it’s hard to say how common they are, he said. And Olivas said he'd never heard of one that was binding.

• Chronicle of Higher Education, Cooperation or Collusion? Lawsuit Accuses Duke and UNC of Faculty Non-Poaching Agreement
• Daily Tar Heel, Suit Accuses Duke, UNC of Antitrust Violation
• Duke Chronicle, Duke Radiologist Brings Class Action Lawsuit Against University
• Science Magazine Blog, An Academic 'Poaching' Lawsuit From a Scientist Who Didn’t Move