Hot on the heels of the Federal Trade Commission’s (FTC) announcement of a policy statement regarding application of the antitrust laws to gig workers, the FTC and the Department of Justice (DOJ) issued joint guidelines outlining how the agencies will assess whether business practices affecting workers violate the antitrust laws. The new guidelines came just days before the second Trump Administration took over and were issued despite strong objections from the Republican Commissioners.
The Biden Administration sought to prioritize using the antitrust laws to protect workers but faced numerous obstacles. In 2024, the FTC issued its Final Rule banning almost all non-compete agreements, but a successful challenge saw the rule set aside. That order is now on appeal. DOJ’s recent losses in its criminal no-poach and wage-fixing cases calls into question the ongoing viability of criminal enforcement in this space, though many of those cases survived motions to dismiss. Late last year, the final version of the changes to the HSR Act filing form and HSR rules was approved without the new requirements for information on labor markets.
The recently issued FTC policy statement and these new guidelines are the latest attempt by the outgoing administration to codify protections for workers. Whether they will have any meaningful impact will need to be seen. Guidelines are not law and as such do not face the same legal challenges that stymied the FTC’s rulemaking regarding non-compete agreements. The incoming Trump Administration can also withdraw these guidelines relatively easily as happened with the FTC’s unilateral withdrawal of the 2020 Vertical Merger Guidelines during the Biden Administration.
Key Takeaways
- Companies need not compete in the provision of actual goods or services to run afoul of the new guidelines, competing for workers is sufficient for an agreement or information exchange relating to labor to violate the antitrust laws.
- The use of third-parties or algorithms to exchange information does not protect against liability. The agencies will consider whether the labor-related information exchanged would likely affect competition.
- Agreements relating to independent contractors or “gig workers” are covered by the antitrust laws.
Purpose of the Guidelines
The new guidelines are intended to replace the 2016 Guidance for Human Resource Professionals and focus on agreements and other activities affecting competition in labor markets. But they provide less not more guidance than the prior guidelines. While the agencies address many of the same types of conduct in both sets of guidelines, a roadmap for when certain conduct may be permissible is notably absent from the latest guidelines.
For instance, the 2016 guidance outlines instances in which information exchange may be lawful: a neutral third party manages the exchange, the information is old, and data is sufficiently aggregated to prevent identifying an underlying source. The 2025 guidelines appear to rescind the prior guidance that the use of a third party could safeguard against liability, but the new guidance is otherwise silent as to whether exchanging dated, aggregated information is less likely to violate the antitrust laws.
The guidelines outline specific types of agreements or business practices that may violate the law, including both those that typically would be prosecuted criminally and treated as per se violations such as wage fixing and no-poach agreements, and those prosecuted civilly and evaluated under the rule of reason standard. The latter types of examples include the exchange of competitively sensitive information among companies that compete for workers (including use of an intermediary or algorithm) and certain restrictive agreements—non-compete, non-disclosure, training repayment, and non-solicit—that when drafted too broadly may impede worker mobility.
The guidelines also state that the antitrust laws apply to relationships between businesses and independent contractors, contrasting with Wednesday’s policy statement exempting gig workers from antitrust liability for protected labor activity like collective organizing or bargaining. This potential discrepancy between shielding coordinated activity amongst employees from liability and highlighting potential pitfalls for employers is consistent with the Biden administration’s focus on workers.
The guidelines identify circumstances that may violate the antitrust laws but provide little information regarding how anticompetitive effects actually will be assessed. Nor do the guidelines discuss the potential pro-competitive benefits of labor-related agreements and how they would be weighed against alleged harm to competition or the competitive process.
Fate of the New Guidelines
The two sitting Republican Commissioners, Andrew Ferguson (the incoming FTC Chair) and Melissa Holyoak, both dissented to the issuance of the new labor guidelines, arguing that it is not appropriate for the Biden Administration to be assessing its policies and issuing new guidelines “mere days before they hand over the baton.”
But neither Commissioner Ferguson nor Holyoak dissented based on the substance of either the policy statement or the new guidelines and Republicans generally have supported antitrust enforcement against unlawful restraints in labor markets. Although both Republican Commissioners have objected to the FTC’s other labor-related activities—including the issuance of the non-compete ban, the labor market-related provisions in the new HSR form, and a recent complaint and consent order in a no-hire case—they have made clear that they believe non-compete and other agreements can violate the antitrust laws and that such agreements should be prosecuted under the rule of reason.
While time will tell whether the new guidelines will survive the change of administration, regardless of their fate, we expect the Republican-controlled FTC likely will closely scrutinize labor-related practices and bring enforcement actions where they deem appropriate.
Associate Ally Ampudia contributed to this article.
