On January 16, 2025, the Federal Trade Commission (FTC) and the U.S. Department of Justice, Antitrust Division (collectively, the Agencies) released the updated Antitrust Guidelines for Business Activities Affecting Workers (the Revised Guidelines). The Revised Guidelines, which passed the FTC in a 3-2 vote with dissents from current FTC Chairman Andrew N. Ferguson and fellow Republican Commissioner Melissa Holyoak, replaced the 2016 Antitrust Guidance for Human Resource Professionals.

The Revised Guidelines reflect the Agencies’ focus on fair competition in labor markets during the Biden administration. (For more information, see our client alert) However, given Chair Ferguson’s dissent and the Trump administration’s efforts to reshape the federal government, it is not clear that the Revised Guidelines will remain intact. Despite—or because of—this uncertainty, it is critical that businesses take an inventory of their employment policies and educate employees about how well-settled principles of antitrust law apply to the workforce.

Key Changes and Clarifications

The Revised Guidelines set forth the following non-binding guidance: 

• Focus on Worker Competition: Antitrust law protects workers from anticompetitive misconduct just as much as they protect consumers of goods and services. Practices that harm this competition in the labor market, such as suppressing wages or limiting job opportunities, may be investigated and prosecuted by the Agencies. 
• Specific Prohibited Practices: Certain business practices may violate antitrust laws, including:
   
  • Wage-fixing: Agreements between companies to set or coordinate wages.
  • No-poach and similar agreements: Agreements between companies not to hire each other’s employees.
  • Exchange of sensitive information: Exchanging competitively sensitive information, such as compensation details, among competing employers.
  • Non-compete clauses: Agreements that restrict workers from leaving their jobs or starting competing businesses.
  • Other restrictive, exclusionary, or predatory employment conditions: Overly broad non-disclosure agreements (NDAs), training repayment agreement provisions, non-solicitation agreements, and exit fee or liquidated damages provisions.
  • False earnings claims: Making misleading statements about potential earnings to attract workers.
• Criminal and Civil Liability: Certain agreements are per se illegal and trigger criminal liability, including agreements between companies to fix wages or not to recruit, solicit, or hire workers.
• Scope of the HR Guidelines: The Revised Guidelines apply to employees, independent contractors, and franchisees.
• Reporting Violations: The Revised Guidelines provide clear steps on how to report potential violations to the FTC and DOJ and the information to include in a complaint.

The FTC Dissent

Now-Chairman Ferguson, joined by Commissioner Holyoak, issued a strongly worded dissent that focused on the timing and future implications of the Revised Guidelines. Although Chairman Ferguson concurred that antitrust law applies to unlawful restraints in labor markets—and that the Agencies should “promote[] important transparency and predictability”—he denounced the Revised Guidelines as a “senseless waste of Commission resources” by “the lame-duck Biden-Harris FTC.”[1] In a separate statement, Commissioner Holyoak agreed that it was “wholly improper for this lame-duck Commission to expedite law enforcement matters, issue notices and advance notices of proposed rulemakings, [and] release new enforcement policy statements and guidance” rather than facilitate “an orderly transition to the Trump-Vance administration.”[2]

What Does this Revised Guidance Mean for Businesses?
Despite the objections to timing, most of the Revised Guidelines are consistent with well-established antitrust principles. Employers should review the Revised Guidelines carefully and then take practical measures to safeguard proprietary information and business interests.

• Take an Inventory of HR policies: Review all agreements and practices affecting worker compensation, recruitment, and mobility for potential antitrust violations.
• Protect competitively sensitive information: Determine whether restrictive covenants such as NDAs are sufficient to protect legitimate business interests such as intellectual property rights. Restrictive covenants should also be narrowly tailored and proportionate to the risk of disclosure to be enforceable and comply with antitrust law.
• Train executives and employees: Invest in training for human resources executives and employees, who may not understand how certain business practices may violate antitrust law—or the ensuing severe penalties. 
• Seek legal counsel: Consult with counsel to analyze specific situations and ensure compliance with antitrust law.

[1] Dissenting Statement of Commissioner Andrew N. Ferguson Joined by Commissioner Melissa Holyoak Regarding the Antitrust Guidelines for Business at https://www.ftc.gov/system/files/ftc_gov/pdf/at-guidelines-for-business-activities-affecting-workers-ferguson-holyoak-dissent.pdf.

[2] Dissenting Statement of Commissioner Melissa Holyoak Regarding Closed Commission Meeting Held on January 16, 2025 at https://www.ftc.gov/legal-library/browse/cases-proceedings/public-statements/dissenting-statement-commissioner-melissa-holyoak-regarding-closed-commission-meeting-held-january.

This post was co-authored by Managed Care + ERISA Litigation lawyer Stephanie J. Oppenheim