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

Remind me, what’s an executive order?

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

Executive orders affect the companies of the executive branch and for that reason do not need the approval of Congress. They need to be within the president’s constitutional authority and might be challenged in court if considered unconstitutional.

Executive orders might be rescinded, overturned by future presidents, or challenged in court, and enforcement top priorities can change throughout any administration.

The brand-new administration’s actions have significant results beyond executive orders. For more on mitigating danger, international organizations can take brand-new opportunities by remaining nimble.

Implications of the executive orders for DEI initiatives and employment in private-sector organizations

On Jan. 21, President Trump issued «Ending Illegal Discrimination and Restoring Merit-Based Opportunity,» which reverses numerous prior employment executive orders and employment memoranda, consisting of Executive Order 11246 (EO 11246) signed in 1965 by President Lyndon B. Johnson.

EO 11246 needed every federal government agreement to include a declaration that the specialist will not discriminate versus any worker or candidate for work based upon race, creed, color, or national origin.

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

However, the executive order signals that there might be altering enforcement concerns in the new administration. The order directs all federal firms to «fight prohibited private-sector DEI choices, mandates, policies, programs, and activities.»

In December 2024, President-elect Trump tapped Harmeet K. Dhillon to lead the Justice Department’s civil liberties office, indicating his record of «taking legal action against corporations who use ‘woke’ policies to discriminate against their employees.»

In addition to withdrawing EO 11246, the Jan. 21 executive order advises each agency of the federal government to identify «up to 9 prospective civic compliance investigations» of private sector entities within 120 days of the order – by May 21, 2025.

The economic sector entities based on these examinations include openly traded corporations, large nonprofits – consisting of bar associations – large structures, and universities whose endowments surpass US$ 1 billion.

Organizations that may be targeted should ask:

– What is my organization’s risk tolerance?

– How will workers react to the business’s actions?

– How will consumers and stakeholders react?

What in-house counsel must think of:

Assess any federal contracts and grants

– Determine if they contain any terms or conditions associated with DEI that may clash with current laws and policies

Review your organization’s existing DEI policies to understand your danger

– Prepare for increased examination and prospective civil compliance examinations

Document, file, file

– Hiring and recruitment processes

– Performance examinations and promotion decisions

– Training products and attendance records

– Any modifications to DEI policies

Implications for federal professionals

Among other steps, the Jan. 21 Executive Order needs the heads of federal firms to consist of specific terms in every agreement or grant award:

– «A term needing the contractual counterparty or grant recipient to agree that its compliance in all respects with all relevant Federal anti-discrimination laws is material to the federal government’s payment decisions for purposes of section 3729( b)( 4) of title 31, United States Code»; and

– «A term needing such counterparty or recipient to accredit that it does not run any programs promoting DEI that breach any relevant Federal anti-discrimination laws.»

Section 3729 of title 31 of the United States Code is a provision of the US False Claims Act, a federal law that imposes civil penalties on those who make incorrect claims to the federal government in order to affect the payment or receipt of money or home.

The accreditation requirement carries a possible threat of lawsuits for federal contractors under the False Claims Act. In-house attorneys at federal contractors therefore have a specific interest in guaranteeing their organization’s policies, treatments, practices, communications and material, are reviewed. Assess if changes are needed to alleviate the threat of lawsuits.

Executive orders targeting illegal immigration

President Trump’s initial flurry of executive orders – such as the Jan. 20 executive order «Protecting the American People Against Invasion» – focused on limiting illegal immigration and deporting illegal immigrants. The orders require enforcement actions by federal companies against prohibited immigration.

In-house attorneys ought to consider evaluating their organization’s employment eligibility confirmation process. They might also wish to think about whether the company is gotten ready for responding to an I-9 audit or a worksite enforcement action (or raid) by immigration enforcement companies.

Sectors that may be especially affected consist of agriculture, hospitality, and other markets such as construction. From 2020-2022, 42 percent of crop farmworkers held no work permission, 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 an essential role to play in developing and ensuring consistent application of the Form I-9 and E-Verify policies the federal government uses to implement and enforce immigration law, shares John W. Mazzeo, AGC, director of I-9 and employment E-Verify compliance for Vertical Screen, Inc., in a 2024 ACC Docket article.

Check out useful lists of considerations relevant for internal 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 danger that the company could begin an I-9 audit if they felt a company was obstructing their need to jail a non-citizen worker, or in many cases obtain a criminal warrant from a judge if actions support it.

Steps in-house counsel should think about:

– Determine the number of workers could potentially be affected

– Review your company’s employment eligibility verification procedure

– Ensure your company’s process is documented and defensible

– Implement and enforce clear policies

– Monitor legal developments, including litigation and enforcement guidance

Mitigate danger, remain active, and seize brand-new opportunities

The current executive orders will significantly impact international organizations. Legal departments and in-house counsel will require to assist their companies comprehend and adapt to modifications, making sure compliance or litigating when suitable.

Many of the new administration’s choices will play out over the coming months, including new executive orders and legal obstacles. The Docket will continue to keep an eye on advancements. Global internal attorneys must get ready for rapid developments connected to:

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 former 2 were both delayed by a month as the administration participates in negotiations. Meanwhile, China has started its own retaliatory measures on US goods. He had actually formerly announced his intent to impose 25-percent intensifying tariffs on Colombia (an action that was ultimately not taken).

Technology and intellectual residential or commercial property. 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 impending ban, sending out waves throughout the innovation 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 global sustainability efforts.

Steps in-house counsel ought to think about:

– Assess the effect of prospective tariff increases on supply chain and company continuity.

– Assess the organization’s reliance on social media platforms, such as for marketing functions, and the potential needs to backup social networks information and employment assets in case their chosen platform stops to be readily available.

– Consider how advancements in the brand-new administration’s technique to environmental, sustainability and governance concerns may impact the organization’s ESG technique.

Disclaimer: The info in any resource in this website must not be interpreted as legal recommendations or as a legal viewpoint on particular realities, and ought to not be thought about representing the views of its authors, its sponsors, and/or ACC. These resources are not meant as a definitive statement on the subject attended to. Rather, they are planned to act as a tool providing useful guidance and referrals for the hectic in-house specialist and other readers.