Over the past several years, the Federal Trade Commission (FTC) has made several attempts to regulate the U.S. workplace. This includes, perhaps most notably, the FTC’s May 2024 rule attempting to ban virtually all existing and future non-compete agreements nationwide (though, at least for now, that rule has been sidelined by the courts). Against that backdrop, on January 16, 2025, the FTC and the Department of Justice Antitrust Division (DOJ) jointly issued Antitrust Guidelines for Business Activities Affecting Workers.

The guidelines, which replace the 2016 Antitrust Guidance for Human Resource Professionals, examine how the FTC and DOJ assess the legality, under federal antitrust laws, of certain business practices affecting U.S. workers. To that end, the guidelines highlight the following five examples of business practices that the FTC and DOJ consider “potential violations of the antitrust laws”:

  1. Wage fixing, recruiting, and solicitation: 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. The DOJ has indeed made such agreements a focal point of its enforcement strategy over the past several years (though largely without success).
  2. Franchise no-poach agreements: Agreements in the franchise context not to poach, hire, or solicit employees of the franchisor or franchisees may violate the antitrust laws.
  3. Information exchange: 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, if companies use a third party or intermediary and/or algorithm to share such information.
  4. Employee non-compete/non-solicitation agreements: The guidelines take the position that employment agreements that restrict workers’ freedom to leave their job may violate the antitrust laws. This appears to be yet another attempt by the now-former Biden administration to outlaw these sorts of standard workplace pacts, following the FTC’s failed (at least now) non-compete rule and separate efforts by the National Labor Relations Board’s General Counsel last fall to argue that such contracts violate federal labor law.
  5. Catchall: Other restrictive, exclusionary, or predatory employment conditions that harm competition may violate the antitrust laws. Examples in this expansive category include overly broad non-disclosure agreements, training repayment agreement provisions, non-solicitation agreements, and exit fee or liquidated damages provisions.

While the above list is not exhaustive, the FTC’s and DOJ’s intentions in drafting the guidelines are clear:  to expand, outside of legislative means, the scope of the federal government’s authority to regulate workplace-related conduct and matters – e.g., non-compete agreements and the exchange of competitively sensitive information – that have historically been considered well outside the ambit of such authority. Indeed, the scope and breadth of the guidelines is virtually unlimited (including by taking the position that companies may compete for workers even where the companies are not actually competitors, and that “[s]ome types of agreements are illegal regardless of their effects”). They rely heavily on cases or other authority and guidance from the last four years, including the 2023 Merger Guidelines.

That all being said, U.S. employers need not necessarily fret just yet. This is for a few reasons, including because, as the guidelines themselves even concede, they have “no force or effect of law.” Moreover, with the U.S. Supreme Court’s decision to overturn the Chevron deference standard last June, federal courts will have virtually no obligation to defer to, or even consider, the guidelines in future litigation. And lastly, the duration of the guidelines may be short-lived, as the incoming Trump administration will likely have differing views on several of the subjects tackled by the guidelines (in fact, in their dissenting statement on the 3-2 FTC vote approving the guidelines, the two Republican commissioners slammed the “Biden-Harris FTC for replacing “existing guidance mere days before they hand over the baton” and described the action as “a senseless waste of Commission resources” and stated that “[t]he Biden-Harris FTC has no future”).