On February 26, 2025, Federal Trade Commission (“FTC”) Chair Andrew Ferguson announced that the FTC would create the agency’s “first ever” Joint Labor Task Force (the “Task Force”), focusing on anticompetitive labor market practices that harm American workers. Chair Ferguson simultaneously issued a memorandum that explained the importance of a healthy labor market. The memorandum highlights examples of allegedly anticompetitive labor practices that are “widespread,” and lays out the Task Force’s responsibilities. The announcement indicates that, as in the first Trump and Biden Administrations, antitrust enforcers under new leadership will likely continue to focus on competition in labor markets.

Trump 1.0 and Biden Focused on Preserving Competition in Labor Markets

In the months leading up to Trump’s first Administration, the FTC and the Department of Justice (“DOJ”) issued Antitrust Guidance for Human Resource Professionals (“2016 HR Guidance”).¹ The 2016 HR Guidance clarified the FTC and DOJ’s position that certain agreements between employers (e.g., no-poach, wage fixing) constitute per se violations of antitrust laws, and announced an intent to criminally prosecute such agreements.² Shortly after the 2016 HR Guidance was issued, President Trump took office and his Administration worked to enforce the antitrust laws in this area. DOJ obtained six indictments for alleged criminal antitrust wrongdoing in labor markets but obtained no convictions at trial.³ For example, in 2022, WilmerHale achieved a landmark and precedent-setting victory on behalf of DaVita in one of the first of these trials brought by DOJ.

The Biden Administration continued to pursue labor-related antitrust cases. Using its statutory rulemaking authority, the FTC banned most employee noncompetes in the United States.⁴ This rule and the FTC’s rulemaking authority more generally have since been challenged in court. Labor issues remained on the agencies’ enforcement agenda until the final days of the Biden Administration, when in January 2025, DOJ and the FTC issued new Antitrust Guidelines for Business Activities Affecting Workers.⁵ The new guidance expanded on the 2016 HR Guidance, removed certain information-sharing safe harbors, adopted a restrictive view regarding the legality of noncompetes mirroring the FTC’s proposed rule, and identified several other practices that could violate antitrust or other laws.

Trump 2.0 Continues Focus on Labor Markets

In addition to emphasizing the importance of a healthy labor market, Chair Ferguson’s memorandum makes clear that the FTC will continue to focus on collusion and other types of anticompetitive conduct in labor markets. Chair Ferguson describes over a dozen examples of conduct affecting labor markets that could be the subject of FTC action. These include:

• No-Poach and Wage-Fixing Agreements: Consistent with the 2016 HR Guidance, the memorandum calls out two types of agreements between employers that the FTC claims are subject to the per se standard: (1) no-poach, non-solicitation, and no-hire agreements that restrict worker movement between jobs and (2) agreements to fix employee wages or benefits, which Chair Ferguson describes as a “hardcore violation of competition laws.”⁶
• Noncompete Clauses: The memorandum flags provisions that employers sometimes put in contracts with employees that impose potentially anticompetitive restrictions, including noncompete provisions that restrict former employees’ ability to take new jobs in the same industry post-employment and provisions imposing penalties on employees who seek to terminate their contracts.⁷
• Unilateral Anticompetitive Labor Practices: The memorandum describes unilateral actions businesses might take that could violate antitrust laws, including misleading franchise offerings, deceptive job advertising or deceptive business opportunities through misrepresentations, and job scams.⁸
• Focus on DEI: Chair Ferguson’s memorandum specifically cites a potential target of the FTC as “collusion or unlawful coordination on DEI metrics, which may have the effect of diminishing labor competition by excluding certain workers from markets, or students from professional training schools, on the basis of race, sex, or sexual orientation.”⁹

Task Force Responsibilities

The Task Force will be composed of “at least” three members from each of the FTC’s Bureau of Competition, Bureau of Consumer Protection, and Bureau of Economics and one member from the Office of Policy Planning.¹⁰ The memorandum outlines the Task Force’s responsibilities, which include prioritizing the investigation and prosecution of deceptive, unfair, or anticompetitive conduct in labor markets and coordinating methods and procedures for uncovering and investigating these practices.¹¹ The Task Force will coordinate exchanges of information regarding best practices across FTC bureaus and develop research on deceptive, unfair, or anticompetitive labor market conduct.¹² The Task Force will also advocate for legislative and regulatory changes to remove barriers to labor market competition and engage the public to inform workers of their rights and mechanisms for reporting potential illegal conduct.¹³ The Task Force will meet monthly and provide updates on all ongoing labor matters and report to the chair quarterly.¹⁴

Implications

The FTC’s announcement of the Task Force signals that antitrust enforcement in labor markets will continue to be a focus during President Trump’s second term. Indeed, recent remarks by DOJ Assistant Attorney General (“AAG”) nominee Gail Slater and FTC Commissioner nominee Mark Meador indicate that likely incoming antitrust enforcers share Chair Ferguson’s interest in labor market enforcement. AAG nominee Slater expressed concern about the “growing practice” of noncompete agreements, which she said are “quite prevalent in markets that are highly concentrated.”¹⁵ Similarly, during his hearing, Commissioner nominee Meador expressed concern that noncompetes “have been overused and abused” and “there’s a lot more the FTC can do, including with competition enforcement actions.”¹⁶

The new Republican agency leadership may, however, be less willing to use nontraditional enforcement tools than were the agencies during the Biden Administration for labor market enforcement. For example, in dissenting from the issuance of the January 2025 Antitrust Guidelines for Business Activities Affecting Workers, Chair Freguson argued that “the lame-duck Biden-Harris FTC should not replace existing guidance mere days before they hand over the baton.”¹⁷ And though his memorandum makes clear that he sees certain employee noncompete agreements as proper targets for antitrust enforcement, Chair Ferguson, with Commissioner Melissa Holyoak, dissented from the FTC’s issuance of a new rule barring most noncompetes.¹⁸ Similarly, Commissioner nominee Meador testified that the FTC should address concerns about noncompetes through enforcement actions on a case-by-case basis.