A Little Too Late: The Department of Justice and Federal Trade Commission’s Last-Minute New Antitrust Guidelines for Business Activities Affecting Workers

In a last-ditch effort, the FTC and DOJ issued new guidelines replacing the 2026 “Antitrust Guidance for Human Resource Professionals,” but exactly what role — if any — the new guidelines will play in the future remains in the air.

Outgoing FTC Chair Lina Khan, the force behind the FTC’s Noncompete Ban, explained “These antitrust guidelines provide clarity to businesses about the practices that can violate the law—from agreements between firms to fix workers’ wages to coercive noncompetes.”

But exactly what role — if any — the 2025 Guidelines will play in the future remains in the air. Incoming FTC Chairman Andrew Ferguson vehemently dissented to the release of the new 2025 Guidelines just days before the change in administrations, labeling them “a senseless waste of Commission resources.” His comments signal that the 2025 Guidelines may be ignored or even replaced in the near future. 

What’s Not Allowed?

The 2025 Guidelines provide a non-exhaustive list of seven different forms of business practices that, under certain conditions, can run afoul of the antitrust laws. 

• Agreements between companies not to recruit, solicit, or hire workers, or to fix wages or terms of employment, may violate antitrust laws and may expose companies and executives to criminal liability. Oral or written understandings to set wage ceilings or informally agree not to cold-call employees can be illegal, even if they do not result in actual harm (such as lost wages). 
• Agreements in the franchise context not to poach, hire, or solicit employees of the franchisor or franchisees may violate antitrust laws. Written or oral no-poach and similar agreements are subject to antitrust scrutiny even if they are between a franchisor and a franchisee or, for example, among the franchisees of the same franchisor.
• Exchanging competitively sensitive information with companies that compete for workers may violate antitrust laws. Exchanging wage and benefit information with competing employers may be illegal even if companies use a third party or intermediary — including a third party using an algorithm — to share such information.
• Employment agreements that restrict workers’ freedom to leave their job, such as noncompete provisions, may violate the antitrust laws. The 2025 Guidance highlights the use of noncompetition covenants used in mergers and the all-but-failed attempt by the FTC to administratively legislate a noncompete ban. As we previously reported, the FTC Noncompete Ban was blocked in August 2024. New FTC Chairman Ferguson has been openly critical of the FTC Noncompete Ban since its inception, foreshadowing the end of the fight over the ban.
• Other restrictive, exclusionary, or predatory employment conditions that harm competition may violate the antitrust law. 
  • Overly broad nondisclosure agreements that prohibit employees from disclosing information that “relates to” or is “usable in” an industry are potentially unlawful.
  • Non-solicitation covenants that restrict a person from working in an industry may be unlawful.
  • Requiring an employee to repay expensive training costs that prohibit the employee from competing in a new business may result in increased scrutiny.
• Independent contractors used as replacement labor. The 2025 Guidelines specifically highlight the use of technology and smartphone apps that match independent contractors, rather than employees, with consumers for services. Collusion between competitors to set rates for these independent contractors can be a per seviolation per the 2025 Guidelines.
• False earnings claims. Businesses that advertise higher compensation or benefits than are available are in jeopardy of engaging in unfair or deceptive business practices. When workers are lured to businesses that advertise significantly more compensation than the worker is likely to receive, honest businesses are less able to fairly compete for those workers.

What Businesses Should Do Now

Even with the uncertainty over the 2025 Guidelines’ fate, their publication provides a good reminder and opportunity for businesses to assess policies and strategize on employment agreements.

• Employers should review employment agreements, compensation practices, and hiring policies to ensure compliance with antitrust laws.
• Businesses engaging in joint ventures or collaborations should ensure that any restrictive covenants are narrowly tailored and reasonably necessary to the partnership’s goals.
• Legal counsel is strongly recommended to assess practices such as noncompetes, information sharing, and hiring restrictions to ensure compliance with applicable law.