On February 26, 2025, Andrew N. Ferguson, the newly appointed Chair of the Federal Trade Commission (FTC), issued a memorandum outlining the agency’s populist agenda and directing the formation of a “Joint Labor Task Force” to focus on labor issues implicating its authority under the antitrust laws. These issues include:
- No-poach, non-solicitation or no hire-agreements, where employers agree not to hire each other’s employees.
- Wage-fixing agreements, where employers agree to fix the level of wages they offer to employees.
- Noncompete agreements, to the extent that they impose unnecessary and onerous restrictions on employees’ ability to remain in their chosen industry after leaving their employment.
- Labor-contract termination penalties, which impose fees on employees who leave their jobs to work for another employer.
- Labor market monopsonies, where an employer uses anti-competitive methods to secure significant buying power in a labor market.
- Collusion or unlawful coordination on DEI metrics, which may have the effect of diminishing labor competition by excluding workers from labor markets, or students from professional training schools, based on race, sex or sexual orientation.
- Harming gig economy workers.
- Deceptive job advertising.
- Deceptive business opportunities.
- Misleading franchise offerings.
- Harmful occupational licensing requirements.
The FTC’s agenda reflects its dual mandate to protect consumers, both in their capacities as consumers and in their roles as workers. Chairman Ferguson directed the Directors of the Bureaus of Competition, Consumer Protection, and Economics, and the Office of Policy Planning, to form a Joint Labor Task Force to address the agency’s priorities.
Chairman Ferguson’s memorandum should not be mistaken to signal the FTC’s continued efforts to ban noncompete agreements. Before becoming chairman, Member Ferguson was one of two dissenters, who refused to vote in favor of the FTC’s April 2024 rule banning noncompete clauses. At the time, he stated that the noncompete ban reflected unprecedented rulemaking, and, in fact, the rule was set aside by two federal courts. It appears that the FTC will scrutinize noncompete agreements that it feels go too far, but we should not expect the issuance of any substantive rules banning noncompetes.
Beyond stating that the FTC will scrutinize DEI programs based on race, sex or sexual orientation, the memorandum provides no guidance on what type of DEI policies might warrant its attention. The memorandum’s reference to “DEI metrics,” however, seems to indicate the focus might be on already unlawful policies imposing hiring preferences.
It remains to be seen how active the FTC will be in formulating labor policy. Nevertheless, Chairman Ferguson’s identification of priorities confirms that the Trump administration is taking a multi-agency approach in addressing labor and other issues.
