Less than a week before the inauguration of President Donald Trump, the Federal Trade Commission (FTC) and U.S. Department of Justice’s (DOJ) Antitrust Division jointly published guidelines on assessing whether business practices affecting workers violate antitrust laws.

Quick Hits

• On January 16, 2025, the FTC and DOJ issued their “Antitrust Guidelines for Business Activities Affecting Workers.”
• The guidelines identify five nonexhaustive types of agreements and policies that may constitute violations of antitrust laws by hindering commercial competition and restricting the free movement of employees.
• The dissenting statement issued by two FTC commissioners indicates the guidelines may be short-lived. Following the recent change in presidential administrations, employers are likely to see new guidance from the FTC and/or DOJ in the coming months.
• The Trump administration has signaled it is interested in antitrust enforcement. Notably, the October 2016 FTC Antitrust Guidance for Human Resource Professionals remained in effect during President Trump’s first administration, and the first Trump DOJ pursued (unsuccessful) criminal cases in this area. Any new guidelines may be closer to the 2016 guidelines.

The guidelines were adopted in a 3–2 vote along partisan lines, with the dissenting Republican-appointed FTC commissioners questioning the timing of these efforts and stating that the guidelines were not necessary. While this internal FTC criticism plus a new presidential administration seems to place enforcement of the guidelines in a state of limbo, employers may still want to exercise caution about noncompliance. The guidelines are the rule until they are changed or there is an announcement that they will not be enforced as revised.

The Guidelines and the Dissent

The recently adopted guidelines emphasize that “antitrust laws protect competition for labor, just as they protect competition for goods and services that companies provide.” To that end, “[b]usiness practices may violate the antitrust laws when they harm the competitive process[.]” The guidelines were issued to “promote clarity and transparency” by identifying ways that business practices affecting workers might run afoul of antitrust laws.

In their dissenting statement, the two Republican-appointed FTC commissioners criticized the “lame-duck Biden-Harris FTC” for issuing the guidelines at the eleventh hour, calling it a “senseless waste of Commission resources.” These statements indicate the guidelines will likely be short-lived, at least in their current form.

The guidelines identify five broad categories of agreements and employment policies that may violate antitrust laws:

1. “No-Poach” and “Wage-Fixing” Agreements Between Companies. Employers may be engaged in an antitrust crime if they enter into agreements “not to recruit, solicit, or hire workers or to fix wages or terms of employment.” Even if not styled as a “no-poach” or “wage-fixing” agreement, companies may violate antitrust laws if they “agree to align, stabilize, or otherwise coordinate” to set wages, including through the use of pay ranges, ceilings, or benchmarks. These types of formal and informal agreements are illegal and may be subject to criminal penalties, even if no actual harm results. On this issue, the guidelines largely reiterate prior guidance issued by the DOJ and FTC in their October 2016 guidelines for human resources professionals.
2. “No-Poach” Agreements in Franchise Agreements. The guidelines extend the prohibition on “no-poach” agreements beyond business competitors by applying it to franchise agreements. Because franchisors (and even other franchisees) often compete with franchisees for workers, they sometimes agree not to hire one another’s workers. The guidelines conclude that such agreements “can be per se illegal under the antitrust laws.”
3. Exchanging “Competitively Sensitive Information” About Workers. The guidelines declare that sharing competitively sensitive information about the terms and conditions of employment (such as compensation, benefits, and other key terms) may violate antitrust laws. This may occur “when the exchange has, or is likely to have, an anticompetitive effect, whether or not that effect was intended.” The guidelines emphasize that sharing this information through a third party (such as through an algorithm or other software) may constitute an antitrust violation, and that is true “even if the exchange does not require businesses to strictly adhere to those recommendations.”
4. Noncompete Agreements. Consistent with the FTC’s approach to noncompete agreements under the Biden administration, the guidelines state that “[n]on-compete clauses that restrict workers from switching jobs or starting a competing business can violate the antitrust laws.” The guidelines acknowledge the FTC final rule banning most noncompete agreements has been enjoined by courts and is currently on appeal, but emphasizes that “the FTC retains legal authority to address non-competes through case-by-case enforcement actions under the FTC Act, as it has done in the past.” The guidelines also note the FTC’s view that other federal laws may be implicated by noncompete clauses, including the National Labor Relations Act and the Packers and Stockyards Act.
5. Other Restrictive Employment Conditions. The guidelines identify several other employment practices and conditions that may be “restrictive, exclusionary, or predatory,” and thus violative of antitrust law:

• Overbroad nondisclosure agreements that function to prevent workers from seeking or accepting other work or starting a competitive business.
• Training repayment agreement provisions that function to prevent workers from working for another company.
• Overbroad nonsolicitation agreements that prohibit workers from soliciting former clients or customers may restrict workers from seeking or accepting another position.
• Exit fee and liquidated damages provisions that require workers to pay a financial penalty for leaving their employer.

In addition to these five categories, the guidelines also note that antitrust laws may be implicated where companies “make false or misleading claims about potential earnings that workers (including both employees and independent contractors) may realize” in their positions. According to the guidelines, these “false earnings promises” can make it more difficult for “honest businesses” to fairly compete in the marketplace.

Conclusion

With the recent change in presidential administrations, the FTC and DOJ composition and policy initiatives are very likely set to change. Notably, however, the dissent readily acknowledges that “antitrust laws protect employees from unlawful restraints of the labor markets, and guidance reflecting the Commission’s enforcement position on these issues promotes important transparency and predictability to market participants.” The FTC and DOJ may issue new guidelines on these topics under the new administrative regime.

Regardless of whether the guidelines survive, employers considering the types of agreements and employment practices identified in the guidelines should carefully review them and confer with counsel to minimize risk to their business.