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
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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. |
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Clay Friedman – Co-leader Clayton is a partner in the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group and co-leader of the State Attorneys General practice, multidisciplinary teams with decades of experience crafting effective strategies to help deter or mitigate the risk of enforcement actions and litigation. |
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Stephen Piepgrass Stephen leads the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group. He focuses his practice on enforcement actions, investigations, and litigation. Stephen primarily represents clients engaging with, or being investigated by, state attorneys general and other state or local governmental enforcement bodies, including the CFPB and FTC, as well as clients involved with litigation, with a particular focus on heavily regulated industries. |
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Michael Yaghi Michael is a partner in the firm’s State Attorneys General and Regulatory Investigations, Strategy + Enforcement (RISE) Practice Groups, nationwide teams that advise clients on consumer protection enforcement matters and other regulatory issues. |
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Samuel E. “Gene” Fishel Gene is a member of the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) practice, based in the Richmond office. He brings extensive regulatory experience, having most recently served as senior assistant attorney general and chief of the Computer Crime Section in the Office of the Attorney General of Virginia, and as special assistant U.S. attorney in the Eastern District of Virginia for 20 years. |
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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. |
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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. |
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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. |
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Chris Carlson Chris Carlson represents clients in regulatory, civil and criminal investigations and litigation. In his practice, Chris regularly employs his prior regulatory experience to benefit clients who are interacting with and being investigated by state attorneys general. |
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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. |
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Nick Gouverneur Nick is an associate in the firm’s Regulatory Investigations, Strategy + Enforcement Practice Group. |
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Natalia Jacobo Natalia is an associate in the firm’s Regulatory Investigations, Strategy and Enforcement (RISE) practice. She focuses her practice on two primary areas: government contracting and state attorney general work. |
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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. |
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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. |
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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. |
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Trey Smith Trey is an associate in the firm’s Regulatory Investigations, Strategy + Enforcement Practice. He focuses his practice on helping financial institutions and consumer facing companies navigate regulatory investigations and resulting litigation. |
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Daniel Waltz Daniel is a member of the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group and State Attorneys General team. He counsels clients in connection with navigating complex government investigations, regulatory compliance, and transactions, involving state and federal government contracting obligations. Drawing on his broad experience as a former assistant attorney general for the state of Illinois, Daniel is a problem solver both inside and outside the courtroom. |
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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. |
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Stephanie Kozol Stephanie is Troutman Pepper Locke’s senior government relations manager in the state attorneys general department. |