Days before President Trump’s inauguration, the Federal Trade Commission (FTC) and Antitrust Division of the U.S. Department of Justice (DOJ) replaced their Antitrust Guidance for Human Resources Professionals (“2016 Guidance”), which had been in place since 2016. The Antitrust Guidelines for Business Activities Affecting Workers covers similar ground as the prior guidance, but expands its reach to a few areas emphasized by the Biden Administration. For example, where the 2016 Guidance primarily covered 1) naked agreements between employers not to poach workers or fix wages and 2) information-sharing arrangements between competing employers, the replacement guidance expands its coverage to other areas, including restrictions in the franchise and independent contractor contexts, non-competition agreements, ancillary agreements such as non-disclosure agreements, non-solicitation agreements, liquidated damages provisions, and conduct such as false earnings claims.
Notably, in its discussion of the risks involved in sharing employment data between employers (an area covered by the 2016 Guidance), the new guidance removes any reference to or reliance on the information-exchange guidelines contained in the 1996 Statements of Enforcement Policy in Healthcare, which the DOJ and FTC withdrew in 2023. In its place, the new guidance warns against information exchanges facilitated by third parties, software, or algorithms that are used to generate wage or benefit recommendations.
Whether the new guidelines will remain in place remains to be seen. Not surprisingly, the decision to issue the replacement guidance was heavily criticized by the FTC’s two Republican commissioners, with Commissioner Ferguson bluntly stating, “the Biden-Harris FTC announcing its views on how to comply with the antitrust laws in the future is a senseless waste of Commission resources. The Biden-Harris FTC has no future.” Although the Trump Administration may easily withdraw these new guidelines, it’s far from clear whether it will do so. The prior antitrust guidance was issued in October 2016 during the closing days of the Obama Administration, and the first Trump Administration left them in place. The Trump Administration even followed through on their promise of aggressive criminal prosecution, with then-Assistant Attorney General Makan Delrahim affirming in 2019 that “criminal prosecution of naked no-poach and wage-fixing agreements remains a high priority for the Antitrust Division.” Antitrust enforcement in the employment context was an enforcement priority that carried over from the Obama Administration to the first Trump Administration, and it may well do the same in the second.