Biden Administration Issues Antitrust Guidelines for Business Activities Affecting Workers

In January of 2025, during the last month of the Biden Administration, the U.S. Department of Justice (DOJ) and the Federal Trade Commission (FTC) issued new guidelines explaining how business practices affecting workers may violate the antitrust laws.  The new guidelines replace the Antitrust Guidance for Human Resource Professionals issued during 2016.  The following is a summary of these worker guidelines, issued during the final week of the Biden Administration.

The antitrust laws protect competition for labor, just as they protect competition for goods and services that companies provide.  When companies act in ways that harm competition for workers, that behavior might lead to fewer job opportunities for workers, lower wages, and worse job quality.  That is why the antitrust laws prohibit certain practices that harm competition for workers.  Section 6 explains that the antitrust laws apply to relationships between businesses and independent contractors.  Section 7 explains that false claims about workers’ potential earnings may violate federal laws against unfair, deceptive, or abusive practices.  Section 8 provides information about reporting potential antitrust violations to the Agencies.

As discussed further in Sections 1-5, the Agencies may investigate certain types of agreements or business practices as potential violations of the antitrust laws.  Examples of such agreements include:

1. Agreements between companies not to recruit, solicit, or hire workers, or to fix wages or terms of employment, may violate the antitrust laws and may expose companies and executives to criminal liability. 
2. Agreements in the franchise context not to poach, hire, or solicit employees of the franchisor or franchisees may violate the antitrust laws. 
3. Exchanging competitively sensitive information with companies that compete for workers may violate the antitrust laws.  This includes exchanges of information about compensation or other terms or conditions of employment, and other exchanges of information that harm competition for workers. 
4. Employment agreements that restrict workers’ freedom to leave their job may violate the antitrust laws.  These include non-compete provisions that prevent workers from leaving their job to join a competing or potentially competing employer; that prevent workers from leaving their job to start a new business; or that require workers to pay a penalty upon leaving their job.
5. Other restrictive, exclusionary, or predatory employment conditions that harm competition may violate the antitrust laws.  These include overly broad non-disclosure agreements, training repayment agreement provisions, non-solicitation agreements, and exit fee or liquidated damages provisions.

This list is not exhaustive.  Listed activities may or may not be an antitrust violation.

General Principles for Analyzing Agreements that Impact Workers:  In many of these circumstances, the Agencies will focus on whether there is an agreement between businesses that harms competition for workers.  An agreement need not be explicit or written down in order to violate the antitrust laws.  Agreements - sometimes called conspiracies, gentlemen’s agreements, handshake agreements, or shared or mutual understandings - that violate the antitrust laws can be formal or informal; express or implicit; and need not be written down or talked about at all.

If the Agencies identify an agreement between companies relating to workers, they assess its impact on competition and the competitive process.  Some types of agreements are illegal regardless of their effects.  In other cases, the Agencies perform a deeper analysis, examining the impact of the agreement on workers by impairing the competitive process, suppressing competition, or the actual or likely effects of the conduct in the affected labor market.

The Agencies also focus on whether the participants in a potential agreement compete for workers.  Businesses can compete to hire or retain workers even if they make different products or offer different services.  Accordingly, when assessing agreements that affect workers, the Agencies will focus on whether the businesses compete in the same labor markets even if they do not compete as sellers of products or services.

Companies can be labor market competitors even if they have some other collaborative or cooperative relationship, such as a joint venture that produces a good or provides a service.  Companies can also be competitors in a labor market even if they are not competitors in downstream markets to produce a good or service.  

Although antitrust issues are generally bipartisan, it is not known whether the Trump Administration will stand by these worker guidelines.  Related issues were pending before the FTC, and the two Republican commissioners voted against approving the worker guidelines.  In any event, the guidelines provide a statement of position taken by the government on worker issues that may be picked up by future enforcers and/or private plaintiffs.  

This article is part of our April 2025 Newsletter. 

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