Employment Law Report
Federal Trade Commission and Department of Justice Release New Antitrust Guidelines
By: Brandon Girdley
On January 16, the Federal Trade Commission (FTC) and Department of Justice (DOJ) Antitrust Division released new antitrust guidelines for business activities that affect workers.[1] The new guidelines replace the 2016 Antitrust Guidance for Human Resource Professionals and explain how the FTC and DOJ assess whether certain business practices that affect workers might run afoul of antitrust laws.[2]
The guidelines identify examples of agreements or business practices that might violate antitrust laws, such as wage-fixing and no-poach agreements, sharing competitively sensitive information with competitors, non-compete clauses, and other restrictive, exclusionary, or predatory employment conditions.[3] The guidelines also explain that antitrust laws apply not only to agreements between businesses, but also to agreements between businesses and independent contractors.[4] Lastly, the guidelines state that false earnings claims can violate antitrust laws and that the FTC and DOJ can investigate and punish businesses that make false or misleading claims about earnings that workers may realize.
While the new guidelines have only recently been released, their fate is uncertain. The FTC passed the guidelines on a narrow 3-2 vote. One of the dissenting Commissioners, Andrew N. Ferguson, was designated as the FTC Chairman by newly-inaugurated President Trump only four days later. The DOJ will also have a new leader soon, as President Trump’s nominee for Attorney General, Pam Bondi, recently saw her nomination pass out of the Senate Judiciary Committee and to the full Senate for a vote. It is likely that the new leadership at the FTC and DOJ will usher in policy changes that may have broad and significant impacts on antitrust enforcement.
[1] FTC and DOJ Jointly Issue Antitrust Guidelines on Business Practices that Impact Workers, Fed. Trade Comm’n (Jan. 16, 2025), https://www.ftc.gov/news-events/news/press-releases/2025/01/ftc-doj-jointly-issue-antitrust-guidelines-business-practices-impact-workers.
[2] Antitrust Guidelines for Activities Affecting Workers, U.S. Dept’ of Just., Fed. Trade Comm’n (January 2025), https://www.ftc.gov/system/files/ftc_gov/pdf/p251201antitrustguidelinesbusinessactivitiesaffectingworkers2025.pdf.
[3] Id. at 4–10.
[4] Id. at 10.
