Despite predictions of a dramatic shift in enforcement priorities at the Federal Trade Commission (FTC) with the change in presidential administrations, the Trump administration is likely to continue the Biden administration's aggressive antitrust enforcement in labor markets. Recent comments by new FTC Chairman Andrew Ferguson and President Trump's pick to fill the remaining seat on the five-member commission, Mark Meador, suggest that the Ferguson-led FTC will continue to prioritize enforcement against actions that harm workers. This could include enforcement against noncompete, no-poach and nonsolicitation agreements as well as labor-side considerations in merger enforcement. But while the goals may appear similar, the FTC's approach will likely change, with the agency using different tools and citing different authorities than it did under former Chair Lina Khan.
Continuation of Aggressive Enforcement Against Noncompete Agreements
Perhaps the most significant labor market initiative of the Biden administration's FTC was its promulgation of a rule outlawing most noncompete agreements, finalized in April 2024. The FTC purported to issue the rule under its authority to regulate "unfair methods of competition" pursuant to Section 5 of the FTC Act. In July 2024, a federal district court in Texas granted a preliminary injunction against the rule, thus pausing it. Then-Commissioner Ferguson, joined by the other Republican commissioner, Melissa Holyoak, dissented from the noncompete rule, stating that the rule is unconstitutional because Section 5 does not grant the commission the authority to promulgate rules against "unfair methods of competition" as opposed to "unfair and deceptive acts and practices," where the FTC's authority is clear.
But despite his opposition to the noncompete rule, Ferguson's recent actions and comments suggest that he agrees in some respects with the Khan-led FTC's policy of aggressive enforcement against anticompetitive practices that harm workers.
On February 26, 2025, Ferguson issued a directive forming a new FTC Labor Markets Task Force comprising personnel from the agency's three bureaus—the Bureaus of Competition, Consumer Protection and Economics. Ferguson directed the bureaus and the FTC Office of Policy Planning to "work together to prioritize rooting out and prosecuting unfair labor-market practices that harm American workers." The labor market practices that the task force will attack include, among others, noncompete, no-poach and nonsolicitation agreements.
In a speech announcing the formation of the task force, Ferguson said "at the FTC, we are going to take incredibly seriously the fact that antitrust laws protect competition in labor markets." While he restated his view that the noncompete rule is unconstitutional, he also said that the U.S. Supreme Court has recognized since the early 20th century that the nation's antitrust laws protect labor competition. Ferguson specified that he wanted to challenge noncompete agreements using the Sherman Act rather than Section 5 of the FTC Act.
Meador appears to agree with Ferguson's approach. On February 25, he told the Senate Commerce Committee of his concerns that employers have "overused and abused" broad noncompete agreements and that the FTC should bring enforcement actions—as opposed to rulemaking—"as a good next step" to attack such agreements. If Meador is confirmed (his nomination cleared the Commerce Committee on March 12 and now goes before the full Senate), thus creating a 3-2 Republican majority on the commission, the FTC will very likely pursue enforcement against noncompete agreements through case-by-case adjudication, rather than through rulemaking. In addition, the FTC will likely be citing the Sherman Act, not Section 5 of the FTC Act, as authority.
It remains to be seen whether the commission will withdraw the noncompete rule or continue to defend it in the courts.
Continuation of Enforcement Against No-Poach Agreements
Ferguson's announcement that the Labor Markets Task Force will attack no-poach and nonsolicitation agreements is consistent with the actions of the first Trump administration, which brought the first-ever criminal cases against such agreements. Because the FTC does not have criminal jurisdiction, those cases were brought by the Antitrust Division of the Department of Justice. To date, the DOJ has largely failed to convince juries to convict defendants charged with no-poach or nonsolicitation offenses, so some have questioned whether the newly confirmed head of the division, Gail Slater, will continue to bring criminal cases against such agreements. While the FTC under the prior administration brought a few cases against no-poach and nonsolicitation agreements under Section 5, it remains to be seen how it will follow through on Ferguson's vow to challenge such agreements going forward.
Continuation of Merger Guidelines' Labor Market Focus
Ferguson has also signaled that there will be no change in the FTC's enforcement against mergers that have effects in labor markets. In his February 18 memo to FTC staff announcing that the commission would not seek to change the 2023 FTC-DOJ Merger Guidelines, Ferguson stated that "I think the clear lesson of history is that we should prize stability and disfavor wholesale rescission." The 2023 guidelines were the first that recognized labor markets as antitrust markets that were worthy of the government's merger enforcement efforts. The guidelines stated this explicitly:
Labor markets are important buyer markets. The same general concerns as in other markets apply to labor markets where employers are the buyers of labor and workers are the sellers. The Agencies will consider whether workers face a risk that the merger may substantially lessen competition for their labor.
Ferguson's call for "stability" in merger enforcement, particularly in labor markets, appears consistent with his call for continued aggressive enforcement against noncompete, no-poach and nonsolicitation agreements and suggests that labor markets may be considered in certain merger reviews.
Conclusion
Despite the change in administrations, we should not expect a decline in the FTC's enforcement against business conduct and practices that harm workers. Companies should maintain robust antitrust compliance programs and continue to ensure that their practices do not adversely affect labor markets.
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