The Federal Trade Commission and the Department of Justice jointly released new antitrust guidelines for businesses and HR professionals Jan. 16, replacing guidelines issued in 2016.
The guidance reflects updated case law and references developments in employee management, including stipulations around when shared algorithm usage might be in violation of antitrust law, for example.
Notably, guidance around noncompete agreements remains, even though the FTC’s final rule which explicitly banned the agreements was enjoined by federal courts and is under appeal.
“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,” FTC Chair Lina Khan said in a statement.
The Commission voted 3-2 in approval of the guidance, with the two Republican commissioners dissenting.
The dissent calls the guidelines “a senseless waste of Commission resources,” going on to state that the Biden-Harris FTC “has no future.”
Below are nonexhaustive summaries of key parts of the guidance.
Criminal charges are still in play
The guidance makes clear that no-poach agreements and wage fixing could lead to criminal charges, for companies and individuals alike.
“The DOJ may criminally investigate and, where appropriate, bring felony charges against the participants in these agreements, including both individuals and companies,” the guidance reads.
While the DOJ has attempted to indict perpetrators of such agreements, it abandoned its first-ever case on the matter in 2023 even after it had obtained a grand jury indictment against the defendants in a no-poach case; the department did not explain a reason for the change in tactics.
References to prison time that existed in the 2016 guidance were notably removed from the 2025 guidance.
Franchise no-poach agreements may be illegal
Franchisees and franchisors often compete for the same workers, the FTC acknowledges. However, any agreements not to compete for workers could be per se illegal under antitrust law, the guidance states.
“In other words, the agreement itself may be illegal regardless of whether it actually harms workers,” it reads.
Franchisors also may not organize or enforce any no-poach agreements between its franchisees that compete for the same pool of workers.
Sharing “competitively sensitive” information — including wage info — may violate law
Some information, such as compensation, benefits and contract terms, may be considered “competitively sensitive” and could break antitrust law if exchanged with competitors. Such exchanges “may indicate the existence of a wage-fixing conspiracy,” the guidance states.
Using any third-party tools that might share sensitive information between competitive parties may also be unlawful.
One example the guidance gives involves a group of poultry processing companies using a data consulting company to exchange information about “current and future” wages and benefits. Such exchanges might allow companies to generate wage or benefit recommendations to limit competitiveness and therefore may be unlawful, FTC states, even if businesses aren’t required “to strictly adhere to those recommendations.”
Guidance around noncompetes remains
Noncompete clauses, or agreements that restrict workers from changing jobs or starting their own business for a certain period, may violate antitrust laws, FTC said.
“By preventing workers from leaving jobs to pursue better employment opportunities, non-competes decrease competition for workers,” the guidance states.
The guidance also notes that FTC’s final rule banning these agreements is currently on appeal. “Regardless, the FTC retains the legal authority to address non-competes through case-by-case enforcement actions under the FTC Act, as it has done in the past,” it reads.
Be wary of any ‘restrictive’ employment conditions
The guidance points out a number of agreements that may violate antitrust laws, including nondisclosure agreements, nonsolicitation agreements or exit fees, particularly if the provisions are overbroad.
Training repayment provisions — or any requirements that a person repays their training costs if they leave their employer — could also be illegal, the guidance states, “depending on the facts and circumstances,” since they may prevent a worker from leaving for another job or starting their own business.
Independent contractors are included in protections
The guidance around independent contractors particularly flags firms that run smartphone app platforms, such as ridesharing apps and food delivery services, stating that their workers are also covered by the provisions.
For example, competing platforms shouldn’t make any agreements that might fix the compensation of its contractors, the guidance said, as that might expose the platforms to criminal liability.
Employers can’t advertise false earnings
The FTC went after a number of companies in previous litigation, including a ridesharing company, a customer service gig work platform and a food delivery company, for “falsely advertising” the amount of compensation their workers would actually receive.
“When workers are lured to these businesses by false earnings promises, honest businesses are less able to fairly compete for those workers,” the guidance reads.