The US Department of Justice and Federal Trade Commission jointly released updated antitrust guidelines on Jan. 16, mere days before Donald Trump took over the presidency from Joe Biden.

The Antitrust Guidelines for Business Activities Affecting Workers (the 2025 Guidelines) replace the 2016 Antitrust Guidance for Human Resource Professionals and explain how the Justice Department and FTC identify and assess the antitrust risks of business practices affecting workers. They provide examples and cite cases regarding how the agencies analyze business practices that may violate the antitrust laws; the guidelines also explain that certain types of agreements between employers, such as wage-fixing or no-poach agreements, may expose companies and executives to criminal liability under the antitrust laws.

“The uncertainty surrounding these issues requires companies to utilize best practices to move forward in a positive fashion,” said Timothy Szuhaj, legal research analyst at SIA.

“For more than a century, the antitrust laws have protected workers from unlawful schemes, abuses of bargaining power, and restrictions on their mobility,” Acting Assistant Attorney General Doha Mekki of the Justice Department’s Antitrust Division said in a press release. “The Antitrust Division will continue to work with its federal and state partners to ensure the economic freedom and opportunity of American workers and their families.”

Business practices that, under certain conditions, could violate the antitrust laws include:

1. Agreements between companies not to recruit, solicit or hire workers, or to fix wages or terms of employment, may violate the antitrust laws and may expose companies and executives to criminal liability. Where appropriate, DOJ exercises its authority to bring felony criminal charges against companies and individuals who participate in these conspiracies.
2. Agreements in the franchise context not to poach, hire, or solicit employees of the franchisor or franchisees may violate the antitrust laws. No-poach and similar agreements are subject to antitrust scrutiny even if they are between a franchisor and a franchisee or, for example, among the franchisees of the same franchisor.
3. Exchanging competitively sensitive information with companies that compete for workers may violate the antitrust laws. This includes exchanges of information about compensation or other terms or conditions of employment, and other exchanges of information that harm competition for workers. Exchanging such information with competitors may be illegal even if companies use a third party or intermediary — including a third party using an algorithm — to share such information. 
4. Employment agreements that restrict workers’ freedom to leave their job may violate the antitrust laws. These include noncompete provisions that prevent workers from leaving their job to join a competing or potentially competing employer; that prevent workers from leaving their job to start a new business; or that require workers to pay a penalty upon leaving their job.
5. Other restrictive, exclusionary, or predatory employment conditions that harm competition may violate the antitrust laws. These include overly broad non-disclosure agreements, training repayment agreement provisions, non-solicitation agreements and exit fee or liquidated damages provisions.

Whether the new guidelines will remain in place is yet to be determined, according to a blog post by Brian McCalmon, a litigation shareholder at law firm Vedder Price, as the new guidance was “heavily criticized” by the FTC’s two Republican commissioners.

“… the lame-duck Biden-Harris FTC should not replace existing guidance mere days before they hand over the baton,” Commissioner Andrew N. Ferguson wrote in his dissenting statement. “That is not ‘running through the tape.’ Rather, the Biden-Harris FTC announcing its views on how to comply with the antitrust laws in the future is a senseless waste of Commission resources. The Biden-Harris FTC has no future.”