The Federal Trade Commission (FTC), under the new leadership of Republican Chair Andrew Ferguson, has announced the formation of a Joint Labor Task Force to “prioritize rooting out and prosecuting deceptive, unfair, and anticompetitive labor-market practices that harm American workers.” The Joint Labor Task Force will include representatives from the FTC’s Bureau of Competition, Bureau of Consumer Protection, Bureau of Economics and Office of Policy Planning, and is intended to facilitate information-sharing protocols across the bureaus in order to “harmonize” the FTC’s methods of investigating deceptive, unfair, or anticompetitive labor market conduct.
The new initiative1 will target some of the same labor practices that were a focus of FTC enforcement in the Biden administration and highlighted in the joint FTC/Department of Justice (DOJ) Antitrust Guidelines on Business Activities Affecting Workers2 published shortly before President Trump’s inauguration in January 2025. These include, but are not limited to, anticompetitive no-poach, non-compete, and wage-fixing agreements in employment contracts. However, the Joint Labor Task Force has also been charged with rooting out “collusion or unlawful coordination on [Diversity, Equity, and Inclusivity] employment metrics,” a sign that Chair Ferguson is ready and willing to use the FTC’s enforcement power to push forward a key policy priority of President Trump that was not an area of focus for the agency in the prior administration.
FTC to use consumer protection and competition enforcement authority to “protect American workers”
In a February 26, 2025 memorandum3 describing the ambit of the Joint Labor Task Force, Chair Ferguson highlights the threat that widespread “deceptive, unfair, and anticompetitive employer labor practices” pose to American workers. Citing both the FTC’s mandate to target unfair or deceptive practices and unfair methods of competition, Chair Ferguson provides examples of conduct that he argues falls within the FTC’s enforcement jurisdiction. This conduct includes:
- 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 diversity, equity and inclusion (DEI) metrics
- Harming gig economy workers
- Deceptive job advertising
- Deceptive business opportunities
- Misleading franchise offerings
- Harmful occupational licensing requirements
- Job scams
Notably, Chair Ferguson included noncompete agreements as conduct within the purview of the Joint Labor Task Force. Chair Ferguson publicly opposed the issuance of the FTC’s rule banning non-competes, and has instead favored case-by-case assessment of noncompete agreements in a manner consistent with existing case law.4 It is also noteworthy that the Chair’s announcement of the Joint Labor Task Force did not mention whether labor theories will continue to be a feature in merger analysis. The FTC’s and DOJ’s 2023 Merger Guidelines expressly stated that the agencies would assess whether a merger substantially reduces competition for labor when evaluating a proposed merger under Section 7 of the Clayton Act.5 Although Chair Ferguson has announced that the FTC would continue to follow the 2023 Merger Guidelines6, any discussion of labor theories in merger analysis was absent from his memo establishing the Joint Labor Task Force.
Chair Ferguson commits FTC resources to enforcing President Trump’s anti-DEI policy agenda
There has largely been bipartisan support in recent years for increased enforcement with respect to the majority of the labor market conduct identified in Chair Ferguson’s directive. However, Ferguson also states that the task force should use its resources to target “collusion or unlawful coordination on DEI metrics,” which he argues “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.”7
Eliminating DEI programs is one of the pillars of President Trump’s second term agenda, evidenced by the issuance shortly after his inauguration of an Executive Order “Ending Radical and Wasteful Government DEI Programs and Preferencing.”8 Following that Executive Order, one of Ferguson’s first acts as FTC Chair was issuing a statement in which he called DEI “a scourge on our institutions” and a “pernicious ideology.”9 Among other things, the statement forbids the Commission “from promoting DEI in any internal or external operations, rules, law-enforcement decisions, or hiring decisions.”10
There is no agency precedent shedding light on what specific conduct the FTC will consider “collusion or unlawful coordination on DEI metrics” for the purpose of triggering the launch of an illegal labor practice investigation. Chair Ferguson’s directive will ostensibly allow the FTC to investigate such purported collusion among private-sector corporations throughout the economy on the basis of an undefined metric which, to date, has not been articulated or communicated to stakeholders. This is a noteworthy development that extends beyond Chair Ferguson’s prior commitment to eliminating DEI programs within the FTC itself (as directed by President Trump’s Executive Order requiring the termination of DEI programs within the federal government), with potentially significant implications.
Looking ahead
The launch of the FTC’s new Joint Labor Task Force provides clarity regarding Republican leadership’s commitment to continue to focus the agency’s enforcement efforts on targeting alleged anticompetitive labor practices. How exactly that enforcement will take shape remains to be seen. For example, Chair Ferguson’s June 2024 dissent11 to the FTC’s rule banning non-compete agreements suggests that, under his leadership, the FTC will abandon its appeal of a Texas district court’s decision setting aside the new rule.12 However, it is noteworthy that Chair Ferguson and Commissioner Holyoak’s dissent to the noncompete rule acknowledged that there are “sound arguments” in favor of regulating noncompete agreements.13 And the inclusion of noncompete agreements on the list of potentially unfair or deceptive practices and unfair methods of competition in Chair Ferguson’s Labor Markets Task Force directive signals that such agreements are still on the radar of FTC enforcers.
Exactly how Chair Ferguson will wield the enforcement authority of the FTC to target DEI programs also remains an open question. Companies should consult with legal counsel before engaging in DEI strategies or entering into noncompetes or other agreements related to employee hiring or wage practices. As it relates to DEI strategies, antitrust risk may be reduced if such strategies are implemented without coordination with other competitors and are supported by a procompetitive business rationale. For other employee practices, companies should adhere to the Biden FTC and DOJ’s final articulation of employee-related antitrust guidance – the January 2025 Antitrust Guidelines for Business Activities Affecting Workers14 – as we wait to learn more about the new Trump administration’s enforcement agenda. Employers should continue to watch this space and review their human resources policies and practices to ensure compliance as antitrust enforcement priorities change.
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