On January 16, 2025, the Department of Justice and the Federal Trade Commission replaced the 2016 Antitrust Guidance for Human Resource Professionals. The new guidelines now titled, Antitrust Guidelines for Business Activities Affecting Workers, reaffirm the major points of the 2016 guidelines. Wage-fixing and no poach agreements remain illegal and sharing wage information may violate the antitrust laws. However, the new guidelines identify a slew of other agreements and practices that can violate antitrust laws, including franchisee agreements with employment restraints, non-compete clauses, overly broad non-disclosure agreements, and other employment restraints.

On January 14, 2025, the Department of Justice, Antitrust Division and Department of Labor, Occupational Safety and Health Administration issued a Joint Statement, asserting that non-disclosure agreements (NDAs) undermine whistleblower protection laws, including the Criminal Antitrust Anti-Retaliation Act (CAARA), when they deter or prevent an employee from coming forward. The Antitrust Division noted they are focused on allowing individuals to report antitrust violations without the fear of retaliation. The Joint Statement also warns against using NDAs as an improper shield to obstruct an investigation, which may result in separate federal criminal violations for companies.

On 12 November 2024, the US Department of Justice Antitrust Division updated its Evaluation of Corporate Compliance Programs in Criminal Antitrust Investigations (ECCP). The additions include guidance such as using “managers at all levels” to “set the tone from the middle” by “demonstrating to employees the importance of compliance,” establishing policies that account for the use of “ephemeral messaging or non-company methods of communication,” applying “data analytics tools in . . . compliance and monitoring,” and involving compliance personnel in “the deployment of AI and other technologies to assess the risks they may pose.” Additionally, the ECCP now addresses its application to civil investigations.

On 22 March 2023, four defendants were acquitted of criminal wage-fixing and no-poach charges, resulting in yet another loss by DOJ’s Antitrust Division in its criminal pursuit of no-poach agreements.

On 19 October 2022, the US Department of Justice’s Antitrust Division announced that seven directors had resigned from their respective corporate board positions in response to concerns of interlocking directorates. This announcement followed reports that DOJ had issued letters to numerous public companies, investors, and individuals last month. The letters reportedly indicated that DOJ was examining potential interlocks and advised the targets of the risk of potential enforcement actions. DOJ’s muscular posture toward enforcement under Section 8 of the Clayton Act is only the “first in a broader review of potentially unlawful interlocking directorates.”