Clifford Chance

The Gig Is Up: Understanding the Implications of the DOJ and the FTC's Guidance on the Labor Market

January 21, 2025

On January 16, 2025, the DOJ and the FTC released the Antitrust Guidelines for Business Activities Affecting Workers (Antitrust Worker Guidelines), replacing the 2016 Antitrust Guidelines for Human Resource Professionals.  Although the Antitrust Worker Guidelines do not alter existing law or legal precedent, they are a last effort by the Biden administration to use antitrust to protect labor markets and to codify in a single document the various ways different agreements affecting workers "may" raise antitrust risks. The Antitrust Worker Guidelines align with the FTC's Enforcement Policy Statement on Exemption of Protected Labor Activity by Workers from Antitrust Liability (Enforcement Policy Statement) published two days earlier, which clarifies that independent contractors, including gig workers, are exempt from antitrust liability when engaging in union activities related to compensation and working conditions. In the Enforcement Policy Statement, the FTC pledged not to bring enforcement actions against independent contractors who collaborate to seek improved labor conditions. Unlike the 2016 Antitrust Guidelines, which received bipartisan approval, the Antitrust Worker Guidelines were passed along party lines at the FTC with a vote of 3-2, raising concerns about their future as dissenting Commissioner Andrew Ferguson, was nominated to become FTC Chair and Republicans are set to take the majority at the FTC.

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