On January 16, the Federal Trade Commission (FTC) and the Department of Justice (DOJ) issued “Antitrust Guidelines for Business Activities Affecting Workers” (2025 Guidelines). The 2025 Guidelines aim to “promote clarity and transparency” in demonstrating how the agencies identify certain business activities that may violate the antitrust laws. The 2025 Guidelines are intended to replace the 2016 “Antitrust Guidance for Human Resource Professionals,” (2016 Guidelines).

Unlike the 2016 Guidelines, which had the support of all five FTC commissioners, the 2025 Guidelines were approved by a 3-2 vote with the two Republican commissioners — Andrew N. Ferguson and Melissa Holyoak — dissenting. Ferguson expressed disappointment that the 2025 Guidelines were issued in the waning days of the Biden administration and wrote that the decision “is a senseless waste of Commission resources.”

While Ferguson’s dissent signals that the 2025 Guidelines may be ignored or replaced in the future, there are still valuable insights to be gained. The 2025 Guidelines identify several principles that were carried over from the 2016 Guidelines. Since these principles were unanimously approved by a previous Commission and upheld during the first Trump administration, they likely to endure the second Trump administration. These enduring principles include:

• Agreements Not in Writing. Agreements do not need to be in writing to violate the antitrust laws. Like formal agreements, informal agreements such as gentlemen’s agreements can violate antitrust laws.
• Wage-Fixing and No-Poach Agreements. Agreements to fix wages and agreements between businesses not to compete for employees may violate antitrust laws, even if the agreements did not result in actual harm. Furthermore, these agreements can lead to criminal prosecution by the DOJ.
• Labor Restrictions Can Be Per Se Illegal. Agreements that serve no legitimate business purpose other than to restrain labor markets are illegal regardless of its competitive effects.
• Businesses Can Compete for Workers Regardless of Industry. While two companies may not compete directly in a market, they can still be competitors if they compete for similar employees.

Below is a summary of the 2025 Guidelines and some of the business activities that may violate antitrust laws:

• No-Poach Clauses in Franchise Agreements. Although franchisors and franchisees may agree to not poach one another’s employees, these agreements may violate antitrust laws regardless of whether the employees are harmed. It is worth noting this was a focal point of the Colorado attorney general’s lawsuit to block the transaction between Kroger and Albertsons.
• Information Sharing With Competitors. The disclosure of sensitive employment terms and conditions to competitors may violate antitrust laws, regardless of any harm suffered by employees, if the information disclosed could have an anticompetitive impact. Even if companies are collaborating in a business endeavor, they should refrain from disclosing this sensitive information.
• Noncompete Clauses. Clauses that restrict an employee’s ability to freely leave their employment or start a business may violate the antitrust laws.
• Additional Restrictive Agreements. Although this list is not exhaustive, the FTC and DOJ identify several agreements that may impede worker mobility and undermine competition such as nondisclosure agreements, training repayment agreement provisions, nonsolicitation agreements, and exit fee and liquidated damages provisions.
• Falsely Advertising Compensation. Incorrectly advertising the compensation that future employees may be eligible to earn may violate the antitrust laws because this impacts other companies’ abilities to honestly compete for employees on the market.
• Application to Independent Contractors. The 2025 Guidelines included independent contractors in addition to traditional employees. In other words, those who employ independent contractors and gig workers, are also subject to the antitrust laws.

Why It Matters

Although the future of the 2025 Guidelines is uncertain, their release serves as a valuable reminder for businesses to assess their policies for antitrust compliance, update compliance programs, and continue providing education and training to employees in line with the guidelines. While the 2025 Guidelines introduced several new principles, they also reinforced enduring principles that are likely to remain in future guidelines. Companies should also continue monitoring the 2025 Guidelines since the Trump administration will likely have different priorities.

Troutman Pepper Locke State Attorneys General Team

	Ashley Taylor – Co-leader and Firm Vice Chair Ashley is co-leader of the firm’s nationally ranked State Attorneys General practice, vice chair of the firm, and a partner in its Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group. He helps his clients navigate the complexities involved with multistate attorneys general investigations and enforcement actions, federal agency actions, and accompanying litigation.
	Clay Friedman – Co-leader Clay co-leads the firm’s State Attorneys General practice and is nationally ranked by Chambers USA for AG Government Relations and in Best Lawyers for Advertising Law. He has dedicated his entire career to state attorney general and federal work, serving for nearly a decade in a senior role and more than 25+ years in private practice. Clay focuses his practice on helping industry-leading companies mitigate the risks associated with state and federal regulatory investigations and associated litigation.
	Chris Carlson Chris advises clients on regulatory, civil, and criminal investigations and litigation. With a background as an assistant attorney general, he provides practical guidance to clients with matters involving state attorneys general and federal regulatory agencies.
	Lauren Fincher Lauren has vast experience handling state attorneys general investigations, navigating complex regulatory compliance matters, and providing strategic counsel in enforcement actions across various industries. She helps clients manage high-stakes regulatory matters and guides them through complex legal landscapes.
	Stephen Piepgrass Stephen leads the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group, representing clients in single and multistate enforcement actions, including inquiries and investigations, as well as litigation involving state attorneys general and other state and federal governmental enforcement bodies. He has significant experience handling actions with federal agencies, including the CFPB and FTC, as well as single plaintiff and class action litigation for clients in highly regulated sectors such as financial services, health care, pharmaceutical, and education.
	Michael Yaghi Mike handles high-profile state attorneys general, FTC, and CFPB investigations by advising clients through these complex government inquiries. He assists clients through the entire life cycle of investigations, from regulatory enforcement through formal litigation.
	Samuel E. “Gene” Fishel Gene is a former regulator with two decades of experience who has overseen state privacy and cybersecurity regulation enforcement, led national, multistate attorneys general privacy investigations, and prosecuted computer crimes at the state and federal levels. He has served at the forefront of state attorney general and federal enforcement, and utilizes this experience to proficiently represent client interests.
	Jay Myers Jay assists clients in heavily regulated industries, including health care, energy, insurance, emerging industries, and data privacy. He provides both regulatory legal advice and government relations strategies. Jay’s past and current clients include Fortune 10 companies, startups, nonprofits, industry associations, and advocacy groups. Recognizing that state government matters are often complex and multifaceted, he utilizes regulatory guidance, government advocacy, or both in tandem to deliver tailored solutions for each client’s unique needs.
	Chuck Slemp Chuck advises clients on a wide range of complex issues that frequently involve government actions, including investigations, inquiries, regulatory matters, and litigation. With a distinguished background in the law and public service, he served as chief deputy attorney general of Virginia before joining the firm. In addition to overseeing the Department of Law and Division of Debt Collection, Chuck managed a team of attorneys who handle complex litigation and investigations. He also directed the attorney general’s legislative affairs and represented the attorney general in various capacities.
	Tim Bado Tim is an associate in the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group, where he represents corporations and individuals facing potential civil and criminal exposure. Tim’s experience in government investigations, enforcement actions, and white-collar litigation spans a number of industries, including financial services, pharmaceutical, health care, and government contracting, among others.
	Jessica Birdsong Jessica is an associate in the firm’s Regulatory Investigations, Strategy + Enforcement Practice Group. She received her J.D. from the University of Richmond School of Law, magna cum laude, where she served as associate articles editor of the Journal of Law & Technology.
	Blake R. Christopher Blake collaborates with clients on matters related to government contracting, investigations, and disputes. His senior-level government experience generates valuable insights and strategies for clients across a variety of industries.
	Nick Gouverneur Nick is an associate in the firm’s Regulatory Investigations, Strategy + Enforcement Practice Group. He received his J.D. from the University of Illinois College of Law, where he served as a member of the Journal of Law, Technology & Policy.
	Troy Homesley Troy is an accomplished litigator who has represented and defended clients across a wide range of complex, high-stakes disputes at both the trial and appellate levels. He has represented technology companies, business executives, law firms, investment funds, high-ranking federal officials, international non-profits, and asylum seekers. Troy draws on his broad litigation experience to advise clients before litigation arises, while claims are pending or threatened, and leading up to and through trial and appeals.
	Natalia Jacobo Natalia is an associate in the firm’s Regulatory Investigations, Strategy and Enforcement (RISE) practice, based on the West Coast. She routinely counsels clients on a variety of state and federal regulatory matters, with a particular emphasis on consumer protection and data privacy matters.
	Namrata Kang Namrata (Nam) is an associate in the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group, based in the Washington, D.C. office. She routinely advises clients on a wide variety of state and federal regulatory matters, with a particular emphasis on state consumer protection laws relating to consumer financial services and marketing and advertising. Nam’s experience transcends multiple industries, including financial services, telecommunications, media, and sports betting.
	Michael Lafleur Michael is an associate in the firm’s Regulatory Investigations, Strategy, and Enforcement Practice Group. Based out of the firm’s Boston office, Mike has deep experience in litigation, investigations, and other regulatory matters involving state-level regulators and state attorneys general.
	Lane Page Lane specializes in federal and state regulatory investigations and complex civil litigation. He focuses on representing financial institutions and other businesses, with a particular emphasis on consumer protection and fair lending issues.
	Dascher Pasco Dascher is an attorney within the Regulatory Investigations, Strategy, and Enforcement practice, based in the Richmond office. She joined our firm after working in personal injury and medical malpractice for a Virginia trial law firm. Dascher brings varied legal experience to the firm with strong litigation and regulatory strategy capabilities.
	Kyara Rivera Rivera Kyara is an associate in the firm’s Regulatory Investigations, Strategy + Enforcement Practice Group. She received her J.D. from the University of Richmond School of Law, cum laude, where she served as publications and online editor of the Public Interest Law Review.
	Trey Smith Trey focuses his practice on representing and advising regulated utilities before state public utility commissions. He routinely helps clients obtain certificates of public convenience and necessity for transmission infrastructure. In this role, Trey works with his clients’ subject-matter experts to manage administrative proceedings, including by preparing initial filings; responding to discovery requests; drafting rebuttal testimony; and litigating any disputed issues.
	Daniel Waltz Dan helps clients navigate all aspects highly regulated relationships between industry participants and federal, state and local governments. Whether engaging with regulators, negotiating transactions or representing clients in the courtroom, he delivers solutions that help his clients achieve their strategic goals.
	Cole White Cole is a member of the firm’s Regulatory Investigations, Strategy and Enforcement (RISE) group. He has a decade of experience working in the attorney general community, having joined the firm from the Wyoming Office of the Attorney General, where he was assistant attorney general.
	Stephanie Kozol Stephanie is Troutman Pepper Locke’s senior government relations manager in the state attorneys general department.