What steps should a private employer take to ensure they are in compliance with antitrust guidelines for business activities affecting workers?

What steps should a private employer take to ensure they are in compliance with antitrust guidelines for business activities affecting workers?

On January 16, 2025, in the last days of the Biden Administration, the Federal Trade Commission (FTC) and Department of Justice (DOJ) jointly issued updated “Antitrust Guidelines for Business Activities Affecting Workers.” Over the next few minutes, we’ll explore what the Guidelines mean for employers who are recruiting, hiring, and seeking to retain their workers.

As a threshold matter, it is important to recognize that these Guidelines were issued by the Biden administration just days before the transition to the new Trump administration, presumably in an attempt to continue to control policy from beyond the political grave. The new FTC Chair, Andrew Ferguson, has offered mixed comments relevant to the enforcement of Biden-era policies. While it appears the new administration is going to be pro-business, Chairman Ferguson has also stated that protecting workers from antitrust violations will be a priority for his team.

The Guidelines seek to address activities such as the sharing of information between employers regarding wages and agreements between employers and staffing agencies or contractors to refrain from recruiting one another’s employees. This is something the previous administration viewed as anti-competitive. In particular, the Guidelines provide a list of business practices that might, under certain circumstances and in the opinion of the former FTC and DOJ, violate the antitrust laws.

While the political landscape has shifted, with the new administration likely to de-prioritize antitrust concerns for workers, it's important to note that the fundamental laws governing antitrust practices have not changed one bit.

In replacing the 2016 “Antitrust Guidance for Human Resource Professionals”, the new Guidelines simply provide additional clarity on how the FTC and DOJ (under the stewardship of the Biden administration) intended to assess whether business practices affecting workers violated antitrust laws.

Key areas of focus included wage-fixing, non-compete clauses, and information sharing about wages and rates between and among competing employers—including a specific warning against certain uses of third-party data collection agencies, which are becoming increasingly popular in the age of big data.

So what’s the bottom line?

If your practices and policies were antitrust-compliant before, they’re compliant now.

However, notwithstanding the political winds, if employers haven’t had the occasion to review and update relevant business practices and policies in recent years (including as it relates to the FTC’s ban on non-competes), we at Littler are here to assist you with training sessions and handbook reviews to ensure your practices align with applicable laws.

That said, you can rest assured that, while the 2025 guidelines provide new insights from a now-expired presidency, the core antitrust laws remain the same.