DOJ and FTC Issue New Antitrust Guidelines for Business Activities Affecting Workers
During their last week in office, and over the vigorous dissent of Republican FTC commissioners, Biden administration antitrust officials unveil new guidelines intended to replace the 2016 Antitrust Guidance for Human Resources Professionals.
On January 16, 2025, the Department of Justice and the Federal Trade Commission ("FTC") issued joint Antitrust Guidelines for Business Activities Affecting Workers. The new guidelines, intended to replace the 2016 Antitrust Guidance for Human Resource Professionals, come with the vigorous dissent of both Commissioner Andrew Ferguson, the next FTC chair, and fellow Republican Commissioner Melissa Holyoak.
Like the 2016 Guidance for Human Resource Professionals, the new guidelines emphasize that antitrust laws apply to competition in labor markets and note that certain types of agreements, including wage-fixing and no-poach agreements, can be per se unlawful and result in criminal prosecution.
In addition to reaffirming these principles, the new guidelines list other types of business practices that, according to the agencies, can potentially violate the antitrust laws:
- Agreements in the franchise context not to poach, hire, or solicit employees of the franchisor or franchisees;
- Exchanging competitively sensitive information, including wage information, directly or through third-party intermediaries or algorithms;
- Non-compete agreements, non-solicitation agreements, and other restrictive covenants;
- Overbroad non-disclosure agreements, "training repayment agreement provisions," and "exit fee or liquidated damages provisions";
- Agreements with independent contractors, and agreements between competing platforms contracting with gig workers; and
- False claims about workers' potential earnings.
The new guidelines do not, however, provide significant details about the circumstances under which these types of conduct likely violate the antitrust laws, nor do they identify any principles that would guide the agencies' decisions about when to bring an enforcement action. Instead, the guidelines read primarily as a list of conduct that could violate the antitrust laws if shown to be anticompetitive. The dissenting commissioners, for their part, focused on the timing of the release—just a few days before the change in administration—and did not address the substance (or lack thereof) in the guidelines themselves.
Given the lack of detail and the Republican commissioners' forceful dissent, it is possible, if not likely, that these guidelines will be significantly revised or even repealed by the incoming Trump administration.
The Trump administration is expected to provide additional insight into its antitrust enforcement priorities over the coming weeks and months. In the meantime, companies should seek advice of counsel if they have any questions about compliance with the antitrust laws.
