Since at least the October 2016 publication of the Federal Trade Commission’s (FTC) and U.S. Department of Justice’s (DOJ) joint Antitrust Guidance for Human Resource Professionals, federal antitrust enforcers have prioritized investigations and litigations involving alleged antitrust violations in labor markets, namely no-poach and wage-fixing agreements. Following several losses at trial, however, and with the recent change in administration, there was some question whether the current administration would continue to prioritize labor markets matters. On February 24, 2025, FTC Chairman Andrew Ferguson answered that question with a resounding “yes” by announcing a “labor markets task force.” The task force is aimed at investigating conduct in labor markets that may violate antitrust and consumer protection laws. As we head into this new era of enforcement, with new leadership at the helm, companies should take care to familiarize themselves with these new developments.
FTC’s Labor Focus Begins to Take Shape
On February 26, 2025, Chairman Ferguson issued a Directive Regarding Labor Markets Task Force (Directive) to the FTC’s section heads—Daniel Guarnera (Director, Bureau of Competition), Christopher Mufarrige (Director, Bureau of Consumer Protection), Ted Rosenbaum (Acting Director, Bureau of Economics), and Clarke Edwards (Acting Director, Office of Policy Planning). See the Directive here. In it, Chairman Ferguson stated that the “FTC feels workers’ pain” and emphasized the FTC’s “dual mandate to protect the American people from unfair or deceptive practices and unfair methods of competition … includ[ing] protecting … American consumers in their roles as workers” as well as their role as consumers. Id.
Chairman Ferguson ordered, “as a first step,” that the Directors of the Bureaus of Competition, Consumer Protection, and Economics, and the Office of Policy Planning, form a Joint Labor Task Force, responsible for, among other things, prioritizing investigation and prosecution of specific types of labor-market conduct; promoting research on deceptive, unfair, or anticompetitive labor market conduct; and identifying opportunities for advocacy on legislative or regulatory changes that would remove barriers to labor market participation, mobility, and competition. See id.
In particular, Chairman Ferguson identified 12 areas of deceptive, unfair, or anticompetitive labor-market conduct where the FTC intends to prioritize investigation and prosecution:
- no-poach, non-solicitation, or no-hire agreements
- wage-fixing agreements
- noncompete agreements
- labor-contract termination penalties
- labor market monopsonies
- collusion or unlawful coordination on DEI metrics, which the FTC states “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”
- harming gig economy workers through unfair or deceptive trade practices
- deceptive job advertising, including “job postings that lure potential employees with false promises regarding important issues like rates of pay or benefits”
- deceptive business opportunities, which “lure Americans into buying a business on the basis of false or misleading representations about the value and potential earnings of the business”
- misleading franchise offerings, which “can lead workers or potential employers to invest savings in ways that never ultimately bring benefits anticipated to the American worker”
- harmful occupational licensing requirements, where “employers or professional associations advance or promote needless occupation licensing restrictions that can serve as an unwarranted barrier to entry and reduce labor mobility”
- job scams, including “fraudulent job placement scams and online ‘task scams’ that lure job seekers to complete small online tasks but instead trick consumers into paying money that is never recovered.”
Notably, the DOJ can prosecute certain labor-market conduct criminally and has brought several criminal charges against companies and individuals for alleged no-poach agreements and wage-fixing. See Wilson Sonsini client alert here.
The FTC, on the other hand, can only bring civil enforcement actions, which has a lower standard of proof than criminal cases.
Recent Labor-Focused Enforcement Actions
Chairman Ferguson’s prioritization of labor markets matters broadly aligns with the views he took as then-Commissioner Ferguson in two recent FTC enforcement actions: In the Matter of Guardian Service Industries, Inc., and In the Matter of Planned Building Services, Inc. et al. Although both actions were brought under the prior administration and former-Chair Lina Khan’s leadership, Chairman Ferguson issued statements, providing additional insight into his view of labor market matters and the potential direction the FTC is headed.
Guardian Service
On December 4, 2024, the FTC filed a complaint against Guardian Service Industries, Inc.—a building services contractor—alleging the company violated Section 5 of the FTC Act through its use of no-hire agreements with some of the residential building owners it contracted with. The Complaint was issued following a split 3-2 vote along party lines, with then-Commissioner Ferguson issuing a dissent. In his dissent, then-Commissioner Ferguson stated that the FTC “is wise to focus its resources on protecting competition in labor markets” but that he dissented in this case because the Complaint “alleges nothing about the no-hire provisions’ effects … [n]or h[ad] [he] seen any such evidence that [went] unmentioned in the Complaint.” Then-Commissioner Ferguson’s dissent signals that he will be seeking to confirm the effects of any conduct directed at labor markets—including any alleged no-poach, non-solicitation, or no-hire agreements—before voting to proceed with any enforcement action.
Planned Building Services
In January 2025, the FTC filed another labor markets complaint, this one against Planned Building Services, Inc., Planned Lifestyle Services, Inc., Planned Security Services, Inc., and Planned Technologies Services, Inc. The FTC Complaint alleged that the companies—building services contractors—violated Section 5 of the FTC Act by including no-hire agreements with residential and commercial building owners. This time, the vote was unanimous, with then-Commissioner Ferguson issuing a concurrent statement that Commissioner Melissa Holyoak joined. In the concurring statement, then-Commissioner Ferguson reiterated his view that the FTC “should devote resources to protecting competition in labor markets” and that, although he viewed this Complaint as “fail[ing] to allege facts demonstrating that the no-hire provisions’ anti-competitive effects outweigh the procompetitive justifications[,]” he had seen evidence, not cited in the Complaint, suggesting to him that they do. What that evidence is, however, is unknown; it is redacted from the public version of then-Commissioner Ferguson’s concurring statement. Nevertheless, this statement again underscores that the FTC will be looking to confirm the conduct’s effects in the labor market.
Conclusion
With the advent of the FTC’s Joint Labor Task Force and the FTC’s confirmed focus on labor markets, companies should take care to ensure their employment practices comply with the antitrust laws. In particular, companies should familiarize themselves with the DOJ and FTC's joint Antitrust Guidelines for Business Activities Affecting Workers, issued in January 2025 and available here. Companies should also review any agreements with other companies regarding hiring decisions.
