[co-author: Stephanie Kozol]*
On January 16, the Federal Trade Commission (FTC) and the Department of Justice (DOJ) issued “Antitrust Guidelines for Business Activities Affecting Workers” (2025 Guidelines). The 2025 Guidelines aim to “promote clarity and transparency” in demonstrating how the agencies identify certain business activities that may violate the antitrust laws. The 2025 Guidelines are intended to replace the 2016 “Antitrust Guidance for Human Resource Professionals,” (2016 Guidelines).
Unlike the 2016 Guidelines, which had the support of all five FTC commissioners, the 2025 Guidelines were approved by a 3-2 vote with the two Republican commissioners — Andrew N. Ferguson and Melissa Holyoak — dissenting. Ferguson expressed disappointment that the 2025 Guidelines were issued in the waning days of the Biden administration and wrote that the decision “is a senseless waste of Commission resources.”
While Ferguson’s dissent signals that the 2025 Guidelines may be ignored or replaced in the future, there are still valuable insights to be gained. The 2025 Guidelines identify several principles that were carried over from the 2016 Guidelines. Since these principles were unanimously approved by a previous Commission and upheld during the first Trump administration, they likely to endure the second Trump administration. These enduring principles include:
- Agreements Not in Writing. Agreements do not need to be in writing to violate the antitrust laws. Like formal agreements, informal agreements such as gentlemen’s agreements can violate antitrust laws.
- Wage-Fixing and No-Poach Agreements. Agreements to fix wages and agreements between businesses not to compete for employees may violate antitrust laws, even if the agreements did not result in actual harm. Furthermore, these agreements can lead to criminal prosecution by the DOJ.
- Labor Restrictions Can Be Per Se Illegal. Agreements that serve no legitimate business purpose other than to restrain labor markets are illegal regardless of its competitive effects.
- Businesses Can Compete for Workers Regardless of Industry. While two companies may not compete directly in a market, they can still be competitors if they compete for similar employees.
Below is a summary of the 2025 Guidelines and some of the business activities that may violate antitrust laws:
- No-Poach Clauses in Franchise Agreements. Although franchisors and franchisees may agree to not poach one another’s employees, these agreements may violate antitrust laws regardless of whether the employees are harmed. It is worth noting this was a focal point of the Colorado attorney general’s lawsuit to block the transaction between Kroger and Albertsons.
- Information Sharing With Competitors. The disclosure of sensitive employment terms and conditions to competitors may violate antitrust laws, regardless of any harm suffered by employees, if the information disclosed could have an anticompetitive impact. Even if companies are collaborating in a business endeavor, they should refrain from disclosing this sensitive information.
- Noncompete Clauses. Clauses that restrict an employee’s ability to freely leave their employment or start a business may violate the antitrust laws.
- Additional Restrictive Agreements. Although this list is not exhaustive, the FTC and DOJ identify several agreements that may impede worker mobility and undermine competition such as nondisclosure agreements, training repayment agreement provisions, nonsolicitation agreements, and exit fee and liquidated damages provisions.
- Falsely Advertising Compensation. Incorrectly advertising the compensation that future employees may be eligible to earn may violate the antitrust laws because this impacts other companies’ abilities to honestly compete for employees on the market.
- Application to Independent Contractors. The 2025 Guidelines included independent contractors in addition to traditional employees. In other words, those who employ independent contractors and gig workers, are also subject to the antitrust laws.
Why It Matters
Although the future of the 2025 Guidelines is uncertain, their release serves as a valuable reminder for businesses to assess their policies for antitrust compliance, update compliance programs, and continue providing education and training to employees in line with the guidelines. While the 2025 Guidelines introduced several new principles, they also reinforced enduring principles that are likely to remain in future guidelines. Companies should also continue monitoring the 2025 Guidelines since the Trump administration will likely have different priorities.
*Senior Government Relations Manager
