In the final week of the Biden administration, the Federal Trade Commission and US Department of Justice released two policies potentially impacting labor markets. The first is a Policy Statement on the Exemption of Protected Labor Activity for Independent Contractors, and the second is the Antitrust Guidelines on Business Practices that Impact Workers.
The policies address antitrust law as applied to independent contractors, especially gig workers, by contemplating new antitrust liability protection similar to the existing antitrust exemption for collective action by employees. They also list various business practices that could violate antitrust laws, impacting how companies manage their labor practices.
Companies should review their labor practices and agreements to ensure compliance with the new guidelines. Legal teams should stay informed about potential changes under the new administration and prepare for possible revisions or repeals of these policies. In the meantime, these policy statements and guidelines reflect agency positions and do not themselves change applicable law. The National Labor Relations Act continues to statutorily exclude independent contractors from unionization rights and processes.
