FTC and DOJ Issue New Antitrust Guidelines for Business Activities Affecting Workers

The FTC and DOJ Antitrust Division issued joint Antitrust Guidelines for Business Activities Affecting Workers purporting to explain how both the FTC and DOJ assess whether business practices affecting workers violate the antitrust laws. The new guidance is intended to replace the 2016 Antitrust Guidance for Human Resource Professionals and focuses on activity affecting competition in labor markets. In particular, the guidance stresses that agreements between businesses not to hire each other’s workers or agreements to fix wages, including by use of a third-party algorithm, may constitute criminal violations of the antitrust laws. It also discusses other types of business practices that can carry antitrust risk, such as information sharing, non-compete agreements, and non-disclosure agreements. The agencies periodically issue non-binding guidance such as this one which is intended as readable, practical guidance that will assist businesses in complying with the existing antitrust laws.

The impact of the new guidance is unclear given the timing of the release and how it was passed by the FTC. The issuance comes just days before President-elect Trump is set to take office, and the FTC voted to issue the new guidance by a partisan 3-2 vote. In particular, current FTC Commissioner Andrew Ferguson, who President-elect Trump plans to appoint the new Chair of the FTC, issued a dissent taking the position that “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” because “the Biden-Harris FTC has no future.” Fellow Republican Commissioner Melissa Holyoak joined in the dissent. It is possible that the newly constituted Commission under the new Trump Administration could withdraw this guidance and return to the 2016 Antitrust Guidance until it has the time to issue guidance reflecting the new Commission’s enforcement position.

Large No-Poach Class Settlement Gets Preliminary Approval in District of Connecticut

A putative class of aerospace workers recently obtained preliminary approval of large settlements with several government contracting firms in antitrust litigation in the U.S. District Court for the District of Connecticut. The nine named plaintiffs are current and former employees of Pratt & Whitney, which is now a division of RTX Corp. (formerly Raytheon Technologies Corporation). Pratt & Whitney manufactures jet engines for commercial and military aircraft. The other five defendants are suppliers of engineering services to Pratt & Whitney.

In their class action complaint, the plaintiffs alleged that the defendants conspired to restrict the recruitment and hiring of each other’s employees in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1. Such agreements are commonly referred to as no-poach agreements. Specifically, the plaintiffs alleged that there were three types of illegal no-poach agreements: (1) an agreement between Pratt & Whitney and the engineering services firm defendants not to recruit or hire each other’s employees, which Pratt & Whitney primarily enforced; (2) an agreement that Pratt & Whitney would not hire from the engineering services firms without their prior written approval; and (3) additional bilateral agreements between certain firms and Pratt & Whitney limiting Pratt & Whitney’s ability to recruit and hire employees from that firm. Plaintiffs argued that this conspiracy restrained competition in the labor market for aerospace workers and suppressed employees’ compensation.

In order to obtain dismissal of the case with prejudice and an exchange of releases, Pratt & Whitney has agreed to pay $34 million into a settlement fund for the benefit of the class. Similarly, the engineering services firm defendants have agreed to pay $26.5 million into a similar fund. A hearing has been set for May 7, 2025 to determine final approval of the settlement after any objections or opt-outs from class members.

Federal Court Stops the FTC Noncompete Rule from Being Enforced or Taking Effect

On August 20, 2024, the United States District Court for the Northern District of Texas, in the Ryan lawsuit, struck down a final Federal Trade Commission (FTC) rule―which was set to go into effect on September 4, 2024, and ban noncompetition agreements for virtually all U.S. workers―holding that the rule shall not be enforced by the FTC or take effect as to any workers or employers. Read the full Alert on the Duane Morris website. 

Is Misclassification of Workers an Unfair Method of Competition?

The Federal Trade Commission (FTC) is signaling its intent to get further involved in employment practices after its activity of the last year and a half in proposing a ban on noncompete clauses in employment contracts and signing a memorandum of understanding with the U.S. Department of Labor (DOL) to bolster the FTC’s efforts to promote competitive U.S. labor markets.

Read the full Alert on the Duane Morris website.

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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