Agencies Issue Antitrust Guidelines for Business Practices Impacting Workers

On January 16, 2025, the U.S. Department of Justice and the Federal Trade Commission (together, “the agencies”) jointly issued Antitrust Guidelines for Business Activities Affecting Workers. The newly issued guidelines replace the 2016 Antitrust Guidance for Human Resources Professionals.

The issuance of the new guidelines continues the agencies’ efforts at combating potentially anticompetitive conduct in the labor market. The guidelines provide examples of potentially concerning conduct and attempt to describe how the agencies analyze business practices that may violate antitrust law.

Some of the conduct addressed in the guidelines includes:

• wage-fixing and no-poach agreements;
• sharing competitively sensitive information—including wage information—with competitors;
• non-compete clauses;
• restrictive or exclusionary employment conditions such as non-disclosure agreements, training repayment agreement provisions, non-solicitation agreements, and exit fee and liquidated damages provisions;
• agreements with independent contractors; and
• false earnings claims.

The guidelines attempt to promote clarity by explaining how the agencies approach potentially anticompetitive conduct and evaluate the relevant circumstances related to such conduct.

However, questions remain. For example, when addressing the sharing of competitively sensitive information, the guidelines state that parties to a legitimate transaction may violate antitrust law by an agreement to share information, such as wage or other terms and conditions of employment. Conversely, when addressing wage-fixing and no-poach agreements, in a footnote, the guidelines point out that such agreements may require a fuller analysis if “the restraint is subordinate and collateral to a broader business collaboration, such as a joint venture, and is reasonably necessary to achieve the procompetitive potential of that collaboration.”

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For additional information about the issues discussed in this Antitrust Byte, or if you have any other antitrust concerns, please contact the attorneys listed on this page or the Epstein Becker Green attorney who regularly handles your legal matters.