by Bruce McCulloch, Justin Stewart-Teitelbaum, Nina Frant, Angela Landry, and Emily Abbott
Left to proper: Bruce McCulloch, Justin Stewart-Teitelbaum, Nina Frant, Angela Landry, and Emily Abbott (photographs courtesy of Freshfields)
On February 24, 2025, Federal Commerce Fee (“FTC”) Chairman Andrew Ferguson introduced the creation of a brand new labor job drive. The duty drive requires the FTC’s Bureau of Competitors, Bureau of Shopper Safety, Bureau of Economics, and Workplace of Coverage Planning (“OPP”) to coordinate to analyze company labor practices that have an effect on customers. The duty drive was formally created by way of memorandum on February 26, 2025.
In saying the duty drive, Chairman Ferguson declared that labor “goes to be one of many high priorities of the Trump-Vance FTC.” He emphasised his plans to “take extremely significantly the truth that the antitrust legal guidelines shield competitors in labor markets.” To that finish, the duty drive will likely be charged with investigating anticompetitive non-compete, no-hire, and no-poach agreements, in addition to different doubtlessly anticompetitive or anti-consumer practices that influence employees.
The Biden-Harris FTC additionally made labor a big focus of its enforcement efforts, together with issuing a rule prohibiting nearly all employer/worker non-compete agreements, alleging hurt to labor markets on account of the (now-abandoned) Kroger-Albertsons merger, and partnering with different administrative businesses to analyze competitors in labor markets. The company additionally introduced actions in opposition to corporations for deceptive employees, together with gig economic system employees, about how a lot cash they might make. Though the Trump-Vance FTC’s strategy could differ from that of the Biden-Harris FTC, Chairman Ferguson’s announcement makes clear that the FTC will proceed to give attention to labor markets using each its antitrust and client safety authority.
This job drive alerts an obvious alignment with the Biden-Harris FTC’s give attention to anticompetitive labor practices in conduct and merger investigations. Nevertheless, Chairman Ferguson’s statements counsel that, no less than in some respects, he plans to take the company in a special path on the subject of enforcement.
As an example, the FTC issued its Remaining Rule prohibiting nearly all non-compete agreements in April 2024. Chairman Ferguson dissented from the issuance of the rule, stating that it’s unconstitutional as a result of the FTC lacked authority underneath the FTC Act and since the Rule violated the Administrative Process Act’s requirement of “reasoned decision-making.” In saying the duty drive, he reiterated his view that the blanket rule is unconstitutional however made certain to notice that the company will “be looking out” for anticompetitive non-compete agreements to be challenged on a case-by-case foundation. In his Senate affirmation listening to on February 25, 2025, President Trump’s nominee to fill the vacant fifth Fee seat, Mark Meador, appeared to agree with the Chairman. He articulated issues that employers have “overused and abused” non-compete agreements and famous that the FTC ought to handle this concern via enforcement actions fairly than rulemaking.
Concerning merger assessment, Chairman Ferguson introduced on February 18, 2025, that the FTC and Division of Justice’s (“DOJ’s”) Joint 2023 Merger Tips, handed by the Biden-Harris FTC and which particularly embody a labor-market principle of hurt, will stay in impact. Nevertheless, Chairman Ferguson has additionally praised the exclusion of a “Labor Markets” part from the brand new HSR Act submitting type and guidelines, which might have required merging events to offer detailed details about labor markets when notifying the FTC and DOJ of their mergers. Chairman Ferguson emphasised that “the abandonment of the proposed Labor Markets part” was the “most essential climbdown” from the preliminary proposed rulemaking, noting the numerous burden on merging events.
It stays to be seen how the Trump-Vance FTC will direct different labor-related insurance policies. Simply days earlier than the Inauguration, the FTC and DOJ issued new tips outlining how the businesses will assess whether or not enterprise practices affecting employees violate the antitrust legal guidelines. The company additionally issued three proposed rulemakings that might add company instruments to deal with misleading incomes claims. Moreover, simply two days prior, the FTC issued a coverage assertion on the FTC’s view that gig employees are “shielded from antitrust legal responsibility when partaking in protected bargaining and organizing actions.” And Chairman Ferguson and Commissioner Melissa Holyoak, the 2 Republican commissioners, dissented to the issuance of the rules, proposed guidelines, and the coverage assertion. Nevertheless, their dissents had been restricted to the timing of those tips – on the eve of the transition to a brand new Administration with totally different coverage priorities – and so they declined to opine on the substance of the steerage. Observers should wait no less than till there’s a Republican majority on the Fee to see if the steerage is withdrawn.
Though the give attention to labor markets is prone to be grounded within the FTC’s competitors mission, Chairman Ferguson believes the company’s client safety mission is related as properly. He referred to as on the Bureaus of Competitors, Shopper Safety, and Economics, and the OPP to coordinate on this mandate. Specifically, he famous that the FTC would examine coaching {and professional} colleges “the place you pay some huge cash to get into knowledgeable faculty and also you don’t actually get a license on the finish of it” in addition to violations of the Enterprise Alternative Rule which protects customers partaking within the buy of a enterprise from deception. The duty drive will likely be composed of three members from every Bureau and one member from OPP, and can meet no less than month-to-month.
- The Trump-Vance FTC is making labor markets a precedence for FTC enforcement.
- To this point, Chairman Ferguson has signaled a transfer towards a extra conventional enforcement strategy that extra exactly targets problematic conduct and lessens pointless burdens on companies.
- Anticipate extra readability on the FTC’s enforcement strategy as soon as a Republican majority is in place. Keep tuned to the A Contemporary Take weblog for updates.
Bruce McCulloch and Justin Stewart-Teitelbaum are Companions, Nina Frant is Particular Counsel, Angela Landry is Of Counsel, and Emily Abbott is an Affiliate at Freshfields. This submit first appeared as a shopper alert for the agency.
The views, opinions and positions expressed inside all posts are these of the creator(s) alone and don’t characterize these of the Program on Company Compliance and Enforcement (PCCE) or of the New York College College of Regulation. PCCE makes no representations as to the accuracy, completeness and validity or any statements made on this website and won’t be liable any errors, omissions or representations. The copyright of this content material belongs to the creator(s) and any legal responsibility close to infringement of mental property rights stays with the creator(s).
by Bruce McCulloch, Justin Stewart-Teitelbaum, Nina Frant, Angela Landry, and Emily Abbott
Left to proper: Bruce McCulloch, Justin Stewart-Teitelbaum, Nina Frant, Angela Landry, and Emily Abbott (photographs courtesy of Freshfields)
On February 24, 2025, Federal Commerce Fee (“FTC”) Chairman Andrew Ferguson introduced the creation of a brand new labor job drive. The duty drive requires the FTC’s Bureau of Competitors, Bureau of Shopper Safety, Bureau of Economics, and Workplace of Coverage Planning (“OPP”) to coordinate to analyze company labor practices that have an effect on customers. The duty drive was formally created by way of memorandum on February 26, 2025.
In saying the duty drive, Chairman Ferguson declared that labor “goes to be one of many high priorities of the Trump-Vance FTC.” He emphasised his plans to “take extremely significantly the truth that the antitrust legal guidelines shield competitors in labor markets.” To that finish, the duty drive will likely be charged with investigating anticompetitive non-compete, no-hire, and no-poach agreements, in addition to different doubtlessly anticompetitive or anti-consumer practices that influence employees.
The Biden-Harris FTC additionally made labor a big focus of its enforcement efforts, together with issuing a rule prohibiting nearly all employer/worker non-compete agreements, alleging hurt to labor markets on account of the (now-abandoned) Kroger-Albertsons merger, and partnering with different administrative businesses to analyze competitors in labor markets. The company additionally introduced actions in opposition to corporations for deceptive employees, together with gig economic system employees, about how a lot cash they might make. Though the Trump-Vance FTC’s strategy could differ from that of the Biden-Harris FTC, Chairman Ferguson’s announcement makes clear that the FTC will proceed to give attention to labor markets using each its antitrust and client safety authority.
This job drive alerts an obvious alignment with the Biden-Harris FTC’s give attention to anticompetitive labor practices in conduct and merger investigations. Nevertheless, Chairman Ferguson’s statements counsel that, no less than in some respects, he plans to take the company in a special path on the subject of enforcement.
As an example, the FTC issued its Remaining Rule prohibiting nearly all non-compete agreements in April 2024. Chairman Ferguson dissented from the issuance of the rule, stating that it’s unconstitutional as a result of the FTC lacked authority underneath the FTC Act and since the Rule violated the Administrative Process Act’s requirement of “reasoned decision-making.” In saying the duty drive, he reiterated his view that the blanket rule is unconstitutional however made certain to notice that the company will “be looking out” for anticompetitive non-compete agreements to be challenged on a case-by-case foundation. In his Senate affirmation listening to on February 25, 2025, President Trump’s nominee to fill the vacant fifth Fee seat, Mark Meador, appeared to agree with the Chairman. He articulated issues that employers have “overused and abused” non-compete agreements and famous that the FTC ought to handle this concern via enforcement actions fairly than rulemaking.
Concerning merger assessment, Chairman Ferguson introduced on February 18, 2025, that the FTC and Division of Justice’s (“DOJ’s”) Joint 2023 Merger Tips, handed by the Biden-Harris FTC and which particularly embody a labor-market principle of hurt, will stay in impact. Nevertheless, Chairman Ferguson has additionally praised the exclusion of a “Labor Markets” part from the brand new HSR Act submitting type and guidelines, which might have required merging events to offer detailed details about labor markets when notifying the FTC and DOJ of their mergers. Chairman Ferguson emphasised that “the abandonment of the proposed Labor Markets part” was the “most essential climbdown” from the preliminary proposed rulemaking, noting the numerous burden on merging events.
It stays to be seen how the Trump-Vance FTC will direct different labor-related insurance policies. Simply days earlier than the Inauguration, the FTC and DOJ issued new tips outlining how the businesses will assess whether or not enterprise practices affecting employees violate the antitrust legal guidelines. The company additionally issued three proposed rulemakings that might add company instruments to deal with misleading incomes claims. Moreover, simply two days prior, the FTC issued a coverage assertion on the FTC’s view that gig employees are “shielded from antitrust legal responsibility when partaking in protected bargaining and organizing actions.” And Chairman Ferguson and Commissioner Melissa Holyoak, the 2 Republican commissioners, dissented to the issuance of the rules, proposed guidelines, and the coverage assertion. Nevertheless, their dissents had been restricted to the timing of those tips – on the eve of the transition to a brand new Administration with totally different coverage priorities – and so they declined to opine on the substance of the steerage. Observers should wait no less than till there’s a Republican majority on the Fee to see if the steerage is withdrawn.
Though the give attention to labor markets is prone to be grounded within the FTC’s competitors mission, Chairman Ferguson believes the company’s client safety mission is related as properly. He referred to as on the Bureaus of Competitors, Shopper Safety, and Economics, and the OPP to coordinate on this mandate. Specifically, he famous that the FTC would examine coaching {and professional} colleges “the place you pay some huge cash to get into knowledgeable faculty and also you don’t actually get a license on the finish of it” in addition to violations of the Enterprise Alternative Rule which protects customers partaking within the buy of a enterprise from deception. The duty drive will likely be composed of three members from every Bureau and one member from OPP, and can meet no less than month-to-month.
- The Trump-Vance FTC is making labor markets a precedence for FTC enforcement.
- To this point, Chairman Ferguson has signaled a transfer towards a extra conventional enforcement strategy that extra exactly targets problematic conduct and lessens pointless burdens on companies.
- Anticipate extra readability on the FTC’s enforcement strategy as soon as a Republican majority is in place. Keep tuned to the A Contemporary Take weblog for updates.
Bruce McCulloch and Justin Stewart-Teitelbaum are Companions, Nina Frant is Particular Counsel, Angela Landry is Of Counsel, and Emily Abbott is an Affiliate at Freshfields. This submit first appeared as a shopper alert for the agency.
The views, opinions and positions expressed inside all posts are these of the creator(s) alone and don’t characterize these of the Program on Company Compliance and Enforcement (PCCE) or of the New York College College of Regulation. PCCE makes no representations as to the accuracy, completeness and validity or any statements made on this website and won’t be liable any errors, omissions or representations. The copyright of this content material belongs to the creator(s) and any legal responsibility close to infringement of mental property rights stays with the creator(s).
