{"id":89526,"date":"2025-02-15T10:57:17","date_gmt":"2025-02-15T10:57:17","guid":{"rendered":"https:\/\/peraltafinancing.com\/business\/legal\/doj-and-ftc-issue-antitrust-guidelines-for-business-activities-affecting-workers\/"},"modified":"2025-02-15T10:57:17","modified_gmt":"2025-02-15T10:57:17","slug":"doj-and-ftc-issue-antitrust-guidelines-for-business-activities-affecting-workers","status":"publish","type":"post","link":"https:\/\/fivemor.com\/?p=89526","title":{"rendered":"DOJ and FTC Issue Antitrust Guidelines for Business Activities Affecting Workers"},"content":{"rendered":"


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Four days before President Trump took office, the Department of Justice (\u201cDOJ\u201d) and Federal Trade Commission (\u201cFTC\u201d) (together, \u201cthe Agencies\u201d) under the Biden administration released their \u201cAntitrust Guidelines for Business Activities Affecting Workers\u201d (\u201cThe Guidelines<\/a>\u201d). These Guidelines replace and expand upon antitrust guidance for HR professionals that the Obama administration issued in 2016. The new Guidelines aim to clarify how the DOJ and FTC \u201cidentify and assess business practices affecting workers that may violate the antitrust laws.\u201d<\/p>\n

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In particular, the new Guidelines address the following types of agreements and business practices as violations of antitrust law that may trigger civil penalties or criminal liability:<\/p>\n

1.\u00a0Wage-Fixing and No-Poach Agreements<\/span><\/p>\n

Wage-Fixing Agreements<\/strong>: These are agreements between businesses (or between individuals of different businesses) to fix wages or other terms of compensation, such as benefits and bonuses. The Agencies say these agreements may be illegal even if they only set a range, ceiling, or benchmark for calculating wages without setting a specific wage.<\/p>\n

No-Poach\/No-Solicit Agreements<\/strong>: These are agreements between businesses (or between individuals of different businesses) to not recruit, solicit, or hire workers. This can include an agreement to request permission from the other company before trying to hire an employee. The Agencies say an agreement may be illegal even if it does not completely prohibit hiring the other company\u2019s workers. For example, an agreement not to \u201ccold call\u201d workers is considered a no-poach agreement by the Agencies regardless of whether the businesses are allowed to hire the workers who applied for a position without first being solicited.<\/p>\n

Notably, the Agencies continue to identify no-poach and non-solicit agreements as potentially per se criminal violations of the antitrust law even after DOJ suffered a series of stinging losses in criminal no-poach trials<\/a>.[1]<\/a><\/p>\n

2.\u00a0No-Poach Agreements Between Franchisor and Franchisee<\/span><\/p>\n

No-poach agreements in the franchise context occur when franchisors and franchisees agree to not compete for workers. The updated Guidelines expand on the no-poach agreements in the franchise context with the Agencies stating they may be illegal regardless of whether they actually harm workers. The Agencies note that a franchisor can also violate antitrust laws if it organizes or enforces a no-poach agreement among franchisees that compete for workers. Written and\/or unwritten agreements between franchisees not to poach, hire, or solicit each other\u2019s workers may also violate state laws, according to the Agencies.<\/p>\n

3.\u00a0Sharing Competitively Sensitive Information<\/span><\/p>\n

According to the Agencies, sharing competitively sensitive information with your competitors, including terms and conditions of employment or compensation, may also violate the antitrust laws if the information exchange has (or is likely to have) anticompetitive effect. Discussing two hot areas of antitrust focus\u2014information exchanges and algorithmic collusion\u2014the Agencies also state that information exchanges can serve as evidence of a wage-fixing conspiracy, including information exchanges facilitated through an algorithm<\/a> or some other third party, or can be unlawful. The Agencies go so far as to say that algorithms that generate wage recommendations may be unlawful even if businesses do not strictly adhere to those recommendations.<\/p>\n

4.\u00a0Non-Compete Clauses<\/span><\/p>\n

The Guidelines say that non-compete clauses that restrict workers from switching jobs or starting a competing business can violate the antitrust laws. As we previously discussed, the FTC issued a rule banning<\/a> most non-compete agreements, but a federal judge in Texas struck down that rule<\/a> in July 2024. The Guidelines acknowledge that case, which is now on appeal, but reassert the FTC\u2019s authority to address non-competes on a \u201ccase-by-case\u201d basis.<\/p>\n

5.\u00a0Other Employment Conditions<\/span><\/p>\n

The Agencies say they will also scrutinize any agreements that \u201cimpede worker mobility or otherwise undermine competition.\u201d The Guidelines use the following as illustrative examples:<\/p>\n