New DOJ–FTC Antitrust Guidelines for Business Activities Affecting Workers: Key Changes and Practical Takeaways

While the original guidelines focused primarily on per se illegal wage-fixing and no-poach agreements, the 2025 Guidelines illustrate a significant expansion in enforcement, broadening scrutiny to compensation benchmarking, wage-setting practices, and the exchange of employment data—particularly through third parties, algorithms or data aggregation tools. Among other expansions, the 2025 Guidelines also specify that businesses sharing sensitive employment information, even indirectly, face heightened enforcement risks.

Enforcement Questions
The 2025 Guidelines follow a series of criminal jury trial and case losses for the DOJ in wage-fixing and no-poach cases. These cases raise new questions about the application of the Sherman Act to labor-market restraints and the circumstances in which criminal cases can and should be charged. And despite the DOJ’s recent cases, it has continued to confirm its intent to bring criminal investigations and prosecutions involving labor market issues.

The FTC commissioners approved the 2025 Guidelines by a narrow 3-2 margin along party lines, with a strong dissent from the Republican commissioners. Commissioner Andrew Ferguson, Trump’s nominee to serve as FTC Chair, expressed concerns about the timing and content, questioning why the outgoing administration should “replace existing guidance mere days before they hand over the baton,” calling it a “senseless waste of Commission resources” due to the change in administration.

These comments and the change in administration cast some uncertainty whether the 2025 Guidelines may be revisited or modified under the new Trump Administration. However, the 2016 guidelines remained in place during the first Trump Administration.  Commissioner Ferguson has acknowledged in a recent dissenting statement that it is “wise” for the FTC “to focus its resources on protecting competition in labor markets.” In the meantime, employers should take note of the new insights in the 2025 Guidelines, as they provide the most recent view of how antitrust enforcement agencies may analyze and prioritize these issues.

Key Updates and Considerations

• Heightened Scrutiny of No-Hire and Wage-Fixing Agreements: The 2025 Guidelines reaffirm the DOJ and FTC’s firm stance on labor market restrictions, warning that no-hire, non-solicit and wage-fixing agreements may violate antitrust laws and, in some cases, result in criminal liability. The agencies emphasize that these agreements are unlawful even if they do not fully prohibit hiring—restrictions on solicitation alone can be enough to trigger enforcement. Agreements to stabilize, align or coordinate wages, whether through direct discussions or third-party benchmarks, are also flagged as potentially illegal. Despite a strong enforcement posture, the DOJ has struggled in court, losing all labor market antitrust trials since 2022. Still, the agencies stress that civil and criminal liability remain real risks, reaffirming their commitment to policing these agreements.
• Franchise “No-Poach” Provisions: The 2025 Guidelines introduce a new focus on no-poach agreements in the franchise context, warning that such agreements between franchisors and franchisees may be per se illegal under antitrust laws. This stance is notable given that courts have often analyzed these agreements under the more lenient rule of reason, recognizing their potential procompetitive justifications. While the DOJ and FTC have not previously pursued significant enforcement in this area—aside from statements of interest and amicus briefs—state attorneys general have actively challenged franchise no-poach clauses, leading to settlements requiring their removal.
• Information Sharing—Especially Through Third Parties or Algorithms: The 2025 Guidelines take a stricter stance on information sharing, warning that exchanging competitively sensitive employment data—such as wages and benefits—may violate antitrust laws even if done through third parties, algorithms or other intermediaries. Unlike the 2016 guidelines, which provided safeguards for minimizing risk, the new guidance omits many of these protections and instead emphasizes potential liability regardless of whether businesses strictly follow the recommendations of such intermediaries. The DOJ and FTC caution that information exchanges can have anticompetitive effects even if employers retain discretion over their compensation decisions, reflecting a growing skepticism toward these practices. This shift signals increased enforcement risk for businesses engaging in wage or compensation benchmarking, particularly when relying on third-party data aggregators or algorithmic tools.
• Non-Compete Clauses: The 2025 Guidelines reaffirm the agencies’ focus on non-compete agreements, emphasizing that restrictions on worker mobility can violate antitrust laws and other federal and state statutes. While the FTC’s 2024 rule broadly banning most non-competes was blocked by a federal court and remains on appeal, the Guidelines stress that the FTC retains authority to challenge such agreements through case-by-case enforcement. This approach aligns with the agency’s historical enforcement actions and signals continued scrutiny despite the uncertainty surrounding the rule’s future. The Guidelines also highlight that non-competes may implicate other federal laws, such as the National Labor Relations Act and the Packers and Stockyards Act, reinforcing the agencies’ expansive view of labor market restrictions.
• Independent Contractors: The 2025 Guidelines clarify that the antitrust laws protect both employees and independent contractors.
• False Earnings Claims: A new section warns that false or misleading statements “about potential earnings that workers … may realize” can raise antitrust risk and invite regulatory review. According to the 2025 Guidelines note, “When workers are lured to these businesses by false earnings promises, honest businesses are less able to fairly compete for those workers.” 
• “Other Restrictive, Exclusionary, or Predatory Employment Conditions: The 2025 Guidelines refer to “other” conditions that may raise antitrust risk.  On this point, the Guidelines include examples such as “overly broad non-disclosure agreements, training repayment agreement provisions, non-solicitation agreements, and exit fee or liquidated damages provisions.”

Conclusion
The 2025 Guidelines represent a significant evolution from the 2016 version. While the basic message remains that no-poach and wage-fixing raise antitrust risks, the 2025 Guidelines confirm that a broader range of conduct may attract civil or criminal scrutiny.

Significant antitrust risk remains. Courts have already allowed multiple labor-focused indictments to proceed to trial (even though juries have acquitted defendants on these charges), and private class actions continue to challenge no-poach and non-compete provisions.

If you have questions about antitrust risk in labor market matters, how the 2025 Guidelines might affect your business, or need assistance reviewing labor-market practices, our Pillsbury Antitrust & Competition practice group has experience in addressing these issues.