2025 United States Executive Orders, DEI, and Employment: how In-house Lawyers can help the Business

Remind me, what’s an executive order?

Executive orders are directives purchased by the president of the United States that direct government agencies and authorities to take particular actions. While they are not laws, they have the force of law and impact how existing laws are implemented or implemented.

Executive orders impact the firms of the executive branch and therefore do not need the approval of Congress. They should be within the president’s constitutional authority and may be challenged in court if considered unconstitutional.

Executive orders might be rescinded, overturned by future presidents, or challenged in court, and enforcement concerns can alter during any administration.

The brand-new administration’s actions have far-reaching effects beyond executive orders. For more on mitigating threat, international organizations can seize new chances by staying active.

Implications of the executive orders for DEI efforts and employment in private-sector companies

On Jan. 21, President Trump released “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” which reverses different previous executive orders and memoranda, including Executive Order 11246 (EO 11246) checked in 1965 by President Lyndon B. Johnson.

EO 11246 needed every federal government agreement to consist of a statement that the contractor will not discriminate versus any staff member or applicant for employment based on race, creed, color, or nationwide origin.

Despite President Trump’s brand-new executive order, the underlying federal anti-discrimination law stays unchanged for private-sector workers.

However, the executive order signals that there may be changing enforcement concerns in the brand-new administration. The order directs all federal firms to “combat unlawful private-sector DEI preferences, mandates, policies, programs, and activities.”

In December 2024, President-elect Trump tapped Harmeet K. Dhillon to lead the Justice Department’s civil liberties office, pointing to his record of “taking legal action against corporations who use ‘woke’ policies to victimize their workers.”

In addition to withdrawing EO 11246, the Jan. 21 executive order instructs each agency of the federal government to identify “approximately nine potential civic compliance examinations” of economic sector entities within 120 days of the order – by May 21, 2025.

The economic sector entities subject to these examinations include openly traded corporations, large nonprofits – including bar associations – large structures, and universities whose endowments surpass US$ 1 billion.

Organizations that may be targeted should ask:

– What is my company’s risk tolerance?

– How will workers respond to the company’s actions?

– How will clients and stakeholders react?

What internal counsel ought to consider:

Assess any federal contracts and grants

– Determine if they contain any terms or conditions related to DEI that might contravene current laws and regulations

Review your company’s existing DEI policies to understand employment your danger

– Get ready for increased analysis and potential civil compliance investigations

Document, file, file

– Hiring and recruitment processes

– Performance assessments and promotion decisions

– Training materials and attendance records

– Any modifications to DEI policies

Implications for federal contractors

To name a few steps, the Jan. 21 Executive Order needs the heads of federal agencies to consist of specific terms in every agreement or grant award:

– “A term needing the contractual counterparty or grant recipient to concur that its compliance in all aspects with all relevant Federal anti-discrimination laws is product to the government’s payment decisions for functions of area 3729( b)( 4) of title 31, United States Code”; and

– “A term requiring such counterparty or recipient to certify that it does not operate any programs promoting DEI that violate any appropriate Federal anti-discrimination laws.”

Section 3729 of title 31 of the United States Code is an arrangement of the US False Claims Act, a federal law that imposes civil charges on those who make incorrect claims to the government in order to influence the payment or receipt of cash or residential or commercial property.

The certification requirement carries a prospective threat of litigation for federal specialists under the False Claims Act. In-house attorneys at federal specialists thus have a particular interest in ensuring their company’s policies, treatments, employment practices, communications and material, are examined. Assess if modifications are needed to reduce the risk of litigation.

Executive orders targeting illegal immigration

President Trump’s initial flurry of executive orders many – such as the Jan. 20 executive order “Protecting the American People Against Invasion” – targeted at restricting illegal immigration and deporting illegal immigrants. The orders call for enforcement actions by federal firms versus prohibited migration.

In-house lawyers ought to think about reviewing their organization’s employment eligibility confirmation procedure. They may likewise wish to think about whether the company is prepared for reacting to an I-9 audit or a worksite enforcement action (or raid) by migration enforcement firms.

Sectors that might be especially impacted include agriculture, hospitality, and other industries such as building and construction. From 2020-2022, 42 percent of crop farmworkers held no work authorization, according to the US Department of Agriculture. The American Immigration Council approximates that more than one million undocumented immigrants work in hospitality, representing 7.1 percent of the labor force.

In-house counsel have a crucial role to play in establishing and making sure consistent application of the Form I-9 and E-Verify policies the federal government utilizes to execute and implement immigration law, shares John W. Mazzeo, AGC, director of I-9 and E-Verify compliance for employment Vertical Screen, Inc., in a 2024 ACC Docket article.

Take a look at useful lists of factors to consider pertinent for in-house legal representatives on the topic of I-9 audits and worksite enforcement actions.

If a company does not comply with a civil administrative warrant presented by US Immigration and Customs Enforcement (ICE), there is a threat that the company could commence an I-9 audit if they felt a company was blocking their requirement to jail a non-citizen staff member, or employment in some cases get a criminal warrant from a judge if actions support it.

Steps internal counsel need to consider:

– Determine how many staff members might potentially be impacted

– Review your company’s employment eligibility verification procedure

– Ensure your company’s procedure is recorded and defensible

– Implement and enforce clear policies

– Monitor legal advancements, including litigation and enforcement assistance

Mitigate risk, remain active, and take new chances

The recent executive orders will considerably affect worldwide organizations. Legal departments and internal counsel will need to help their organizations comprehend and adapt to modifications, ensuring compliance or litigating when suitable.

A lot of the brand-new administration’s choices will play out over the coming months, including brand-new executive orders and legal obstacles. The Docket will continue to keep track of advancements. Global internal attorneys must get ready for rapid developments associated with:

Trade and tariffs. On Feb. 1, President Trump ordered the imposition of a 25-percent tariff on imports from Canada and Mexico, and 10-percent extra tariffs on imports from China. The previous two were both postponed by a month as the administration participates in settlements. Meanwhile, China has actually begun its own vindictive measures on US products. He had actually formerly announced his intent to impose 25-percent escalating tariffs on Colombia (an action that was eventually not taken).

Technology and copyright. One of the president’s very first actions was to rescind the previous administration’s AI executive order. The brand-new administration also extended a grace period for TikTok’s upcoming restriction, sending waves throughout the technology sector, both in the United States and abroad.

Energy, climate, and health. The president likewise withdrew the United States from the Paris Climate Agreement and the World Health Organization, putting an early emphasis on American energy independence and far from the previous administration’s international sustainability efforts.

Steps internal counsel ought to consider:

– Assess the impact of potential tariff boosts on supply chain and organization continuity.

– Assess the company’s reliance on social networks platforms, such as for marketing purposes, and the possible needs to backup social networks data and properties in case their preferred platform stops to be available.

– Consider how developments in the new administration’s method to environmental, sustainability and governance problems may impact the company’s ESG method.

Disclaimer: The details in any resource in this website ought to not be interpreted as legal advice or as a legal viewpoint on specific realities, and should not be considered representing the views of its authors, its sponsors, and/or ACC. These resources are not intended as a conclusive declaration on the subject addressed. Rather, they are meant to work as a tool providing useful assistance and references for the busy in-house practitioner and employment other readers.