DOJ and FTC Issue Antitrust Guidelines for Business Activities Affecting Workers

By:  Ann O’Brien, T.J. Benedict & Jake Walker  (Sheppard Mullin)

This article by authors Ann O’Brien, T.J. Benedict, & Jake Walker (Sheppard Mullin) examines the Antitrust Guidelines for Business Activities Affecting Workers (“the Guidelines”), released by the Department of Justice (DOJ) and Federal Trade Commission (FTC) (collectively, “the Agencies”) under the Biden administration. Published just four days before President Trump took office, these Guidelines replace and expand upon the 2016 antitrust guidance for HR professionals issued during the Obama administration. They aim to clarify how the DOJ and FTC assess business practices that impact workers and may violate antitrust laws.

The Guidelines specifically address agreements and business practices that could lead to civil penalties or criminal liability, including:

1. Wage-Fixing and No-Poach Agreements

• Wage-Fixing Agreements: Deals between businesses (or individuals within different businesses) to set wages, benefits, or other compensation terms. The Agencies emphasize that such agreements may be illegal even if they only establish wage ranges, ceilings, or benchmarks rather than fixed salaries.

• No-Poach/No-Solicit Agreements: Agreements that restrict businesses from recruiting, soliciting, or hiring each other’s employees, including requiring permission before making an offer. Even partial restrictions—such as agreements not to “cold call” employees—are considered potential violations.

Despite recent DOJ setbacks in criminal no-poach trials, the Agencies continue to treat no-poach and non-solicit agreements as potential per se criminal violations of antitrust law…

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