Last-Minute Biden Labor-Antitrust Initiatives May ‘Have No Future’
The Federal Trade Commission (FTC) issued an unprecedented policy statement Jan. 14 titled “Exemption of Protected Labor Activity by Workers from Antitrust Liability,” which provides that the commission will not sue nonunionized workers who engage in certain potentially anticompetitive joint conduct. This statement could undermine competition and reduce consumer welfare, without providing any real benefits to labor.
Just two days later, the FTC and the U.S. Justice Department (DOJ) jointly released new “Antitrust Guidelines for Business Activities Affecting Workers.” The 2025 FTC-DOJ guidelines took a more aggressive approach toward business conduct than the 2016 joint FTC-DOJ statement on “Antitrust Guidance for Human Resource Professionals,” which it would replace.
The two back-to-back January actions were the culmination of Biden administration antitrust-enforcement efforts to place far greater emphasis on potential harm to labor interests, in addition to the traditional antitrust concern with promoting consumer welfare.