JOHN RINCON—On January 16, 2025—just days before President Trump’s inauguration—the Department of Justice (DOJ) and Federal Trade Commission (FTC) issued the Antitrust Guidelines for Business Activities Affecting Workers. These guidelines describe how the agencies will evaluate business practices that impact labor markets and may violate antitrust laws. They replace the 2016 Antitrust Guidance for Human Resource Professionals.
The 2016 guidance focused on wage-fixing, no-poach agreements, and sharing of employment-related information. It emphasized that “naked” agreements to fix wages or limit hiring were per se illegal and subject to criminal prosecution. The 2025 guidelines, in contrast, are much broader in scope. They cover additional issues, including non-compete clauses, restrictive employment conditions, and independent contractor arrangements.
The 2025 guidelines state that wage-fixing and no-poach agreements remain per se unlawful, with examples including agreements between businesses to fix salaries. The guidelines also take a position on non-compete clauses, describing them as potentially unlawful when they restrict worker mobility or stifle competition. Although a court ruling in 2024 set aside the FTC’s proposed rule banning most non-competes, the guidelines assert that the FTC retains authority to challenge them on a case-by-case basis.
Under the guidelines, other restrictive employment conditions, such as broad non-disclosure agreements, training repayment provisions, non-solicitation agreements, and exit fees, may harm competition depending on the facts and circumstances. They also address practices involving independent contractors, including those in platform-based services, stating that agreements to fix compensation for such workers could be per se illegal. Additionally, stricter standards are applied to information sharing, particularly regarding the use of algorithms or third-party intermediaries to exchange wage or benefit data.
Critics have argued the language of the guidelines is vague, as the guidelines frequently state that conduct “may” or “could” violate antitrust laws without providing definitive criteria. This lack of precision has raised concerns about the practical application of the guidelines, as employers may be left to interpret the legality of certain practices based on general principles rather than clear rules. The document itself acknowledges that the listed activities may or may not constitute violations, depending on the specific context.
The FTC approved the joint guidance in a 3-2 vote with Commissioners Andrew N. Ferguson (now FTC Chair under the Trump administration) and Melissa Holyoak dissenting. Ferguson criticized the timing of the guidelines’ release, describing it as an eleventh-hour effort by the outgoing administration. Ferguson stated that the Biden-Harris FTC “has no future” and framed the effort as an ineffective attempt to shape enforcement priorities for the next administration. His dissent raises questions about the guidelines’ legal foundations and practical implications. With Ferguson now in charge of the FTC, the future of the guidelines remains uncertain, and their enforcement may be subject to revision or withdrawal.
Still, the issuance of the 2025 guidelines underscores the FTC’s evolving approach to labor market regulation. The move, for instance, followed an FTC policy statement issued on January 14, titled Exemption of Protected Labor Activity by Workers from Antitrust Liability, which declared that “independent contractors, including gig workers, are shielded from antitrust liability when engaging in protected bargaining and organizing activities—such as seeking better compensation and job conditions.” And under Lina Khan’s tenure during the Biden Administration, the FTC—among other actions—took legal action against employers using non-compete agreements for low-wage workers, finalized a consent order preventing a veterinary clinic roll-up by a private equity firm, issued aggressive orders against gig-work companies for misleading earnings claims, and, most notably, sued to block the Kroger/Albertsons merger on both consumer-harm and worker-harm grounds.
By expanding the scope of conduct under scrutiny, the 2025 guidelines arguably did more than offer futile prescriptive guidance as Commissioner Ferguson suggested—instead, they spotlighted the importance the FTC, under Khan, placed on labor market competition. While the durability of the 2025 guidelines will depend on the new administration’s enforcement priorities and ongoing legal challenges, the guidelines did more than merely affirm past actions; they demonstrated the potential of competition regulation in labor markets and set a framework for what future generations of regulation could achieve.
