On January 16, 2025, just days before transferring power to the new administration, the Federal Trade Commission (FTC) and Department of Justice (DOJ) issued updated Antitrust Guidelines for Business Activities Affecting Workers (Guidelines) aimed at addressing business practices that impact workers. The guidelines reflect the former administration’s commitment to protecting labor markets from what it perceived as anticompetitive conduct. The timing of their release and the Trump administration’s stance, however, suggest that enforcement may not be as aggressive under the Trump administration as it would have been under the Biden administration.

Overview of the New Antitrust Guidelines

The FTC and DOJ’s updated Guidelines focus on anticompetitive practices in labor markets, such as wage-fixing, no-poach agreements, and other collusive behaviors that impact workers. These guidelines build on prior efforts, including the 2016 Antitrust Guidance for Human Resource Professionals, but place a stronger emphasis on protecting workers.

Key provisions include:

• Prohibitions on agreements between employers that restrict wages or job mobility.
• Increased scrutiny of staffing agencies and contingent workforce arrangements.
• A commitment to pursuing both civil and criminal enforcement actions against violators.

The Specific Guidelines

The Guidelines provide a non-exhaustive list of business practices that, under certain conditions, can run afoul of antitrust laws. The Guidelines counsel that:

• Agreements between companies not to recruit, solicit, or hire workers, or to fix wages or terms of employment, may violate antitrust laws and may expose companies and executives to criminal liability. The Guidelines signal that oral or written understandings to set wage ceilings or informally agree not to cold-call employees can be illegal, even if they do not result in actual harm (such as lost wages).

• Agreements in the franchise context not to poach, hire, or solicit employees of the franchisor or franchisees may violate antitrust laws. No-poach and similar agreements are subject to antitrust scrutiny even if they are between a franchisor and a franchisee or, for example, among the franchisees of the same franchisor.

• Exchanging competitively sensitive information with companies that compete for workers may violate antitrust laws. This conduct includes exchanges of information about compensation or other terms or conditions of employment, and other exchanges of information that harm competition for workers. Exchanging such information with competitors may be illegal even if companies use a third party or intermediary—including a third party using an algorithm—to share such information.

• Employment agreements that restrict workers’ freedom to leave their job may violate antitrust laws. These agreements include non-compete provisions that prevent workers from leaving their job to join a competing or potentially competing employer; that prevent workers from leaving their job to start a new business; or that require workers to pay a penalty upon leaving their job. Of interest is the Guidelines’ reference to non-compete restrictions, a likely vestige of the FTC ban that was invalidated but (for now) pending appeal. Notably, the 2016 Antitrust Guidelines did not feature non-compete restrictions as prominently as do the recent Guidelines, mentioning only briefly they did not address the legality of non-compete clauses.

• Other restrictive, exclusionary, or predatory employment conditions that harm competition may violate antitrust laws. These conditions include overly broad non-disclosure agreements, training repayment agreement provisions (TRAP), non-solicitation agreements, and exit fee or liquidated damages provisions.

• Independent contractor rate-setting may violate antitrust laws. The Guidelines highlight the use of technology and smartphone apps that match independent contractors, rather than employees, with consumers for services. Collusion between competitors to set rates for these independent contractors can be a violation pursuant to the Guidelines.

• False earnings claims may violate antitrust laws. Businesses that advertise higher compensation or benefits than are available are in jeopardy of engaging in unfair or deceptive business practices. When workers are lured to businesses that advertise significantly more compensation than the worker is likely to receive, honest businesses are less able to fairly compete for those workers.

Implications with New Trump Administration and Next Step for Employers

Incoming FTC Chair Andrew Ferguson dissented to the release of the new Guidelines before the transfer of power, pointedly explaining that the “FTC should not replace existing guidance mere days before they hand over the baton.” Chair Ferguson went on to label the Guidelines as “a senseless waste of Commission resources.”

Nevertheless, the principles articulated in the Guidelines remain legally viable and violating them could result in exposure to liability. Irrespective of a potentially less-aggressive enforcement approach by the Trump administration, the issuance of the Guidelines provides a useful opportunity for businesses to assess their business practices and any existing restrictive covenants with their employees and other businesses. Employers should review employment agreements, compensation practices, and hiring policies to ensure compliance with antitrust laws, adhering to recommended practices by narrowing any restrictions on employee mobility and tailoring them to protect legitimate business interests.

It remains to be seen whether the Trump DOJ/FTC will continue to prosecute employment-based antitrust claims aggressively, including by focusing on no-poaching agreements or misuse of non-competes. Chair Ferguson’s dissent and comments suggest a different approach and, at best, signal uncertainty over the Guidelines’ fate. 

As always, employers are advised to remain vigilant and proactive in adapting to changes while preparing for potential shifts in enforcement priorities under the new administration.