USA – WASHINGTON Trends and Developments Contributed by: Jordanne M. Steiner and Kenneth R. O’Rourke, Wilson Sonsini Goodrich & Rosati
oak dissenting. In their joint dissent, they note that, despite agreeing that, “[t]he antitrust laws protect employees from unlawful restraints of the labor markets, and guidance reflecting the Commission’s enforcement position on these issues promotes important transparency and predictability to market participants[,]” they dis- sent because “the lame-duck Biden-Harris FTC should not replace existing guidance mere days before they hand over the baton” (see here ). Despite dissenting, now-Chair Ferguson has taken no steps to revoke the 2025 Guidelines or reinstate the 2016 Guidance. To the contrary, Chair Ferguson has expressed an interest in pur - suing labour-related cases, stating in a recent interview, “I think one of the most important things that the FTC will do under my watch is focusing very intently on attacking anti-com- petitive conduct that hurts America’s workers” (see here ). Thus, the 2025 Guidelines remain the operative guidance in the US and understanding them is important for counsel and companies alike. We therefore provide additional detail on the 2025 Guidelines below. The 2025 Guidelines The 2025 Guidelines open by noting that they “explain how [DOJ] and the [FTC] assess wheth- er business practices affecting workers violate the antitrust laws” and warn that “business prac- tices may violate the antitrust laws when they harm the competitive process, especially if they deprive labor markets of independent centers of decisionmaking or they create or abuse employ- ers’ monopsony power” . The 2025 Guidelines go on to describe six types of conduct the agencies may investigate, whether directed at employees or independent contractors.
Agreements between companies not to recruit, solicit, cold call, or hire workers, or to fix wages or terms of employment The 2025 Guidelines continue the agencies’ stance that agreements not to recruit, solicit, cold call, or hire workers, or to fix wages or terms of employment may expose companies and executives alike to criminal charges and may also expose them to civil liability. Addition - ally, the 2025 Guidelines reiterate the agencies’ view that such agreements are subject to the per se standard, noting that the agreements are illegal even if they did not result in actual harm. The 2025 Guidelines also provide further insight into how the agencies define wage-fixing, noting that, “If companies agree to align, stabilize, or otherwise coordinate the wages they set, includ- ing by agreeing to a range, ceiling, or bench- mark for calculating wages, it does not matter if they do not agree on a specific wage” . They also note that “an agreement to set a starting point for compensation may be a form of wage[-]fixing under the law” . The agencies reiterated the DOJ’s intent to crim - inally investigate and, where appropriate, bring felony charges against participants in these agreements – both individuals and companies. Agreements in the franchise context not to poach, hire, or solicit employees of the franchisor or franchisees The 2025 Guidelines describe the agencies’ view that franchisors and franchisees may compete for workers and, as such, if a franchisor enters into an agreement with a franchisee in which the franchisor and franchisee agree not to compete for workers, that agreement can be per se ille - gal. They also note that a franchisor may violate the antitrust laws by organising or enforcing a
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