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 instructions purchased by the president of the United States that direct government agencies and officials to take particular actions. While they are not laws, they have the force of law and impact how existing laws are carried out or implemented.

Executive orders impact the agencies 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Executive orders might be rescinded, reversed by future presidents, employment or challenged in court, and enforcement concerns can change during any administration.

The brand-new administration’s actions have far-reaching effects beyond executive orders. For more on mitigating danger, global organizations can take brand-new opportunities by staying active.

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 previous executive orders and memoranda, consisting of Executive Order 11246 (EO 11246) signed in 1965 by President Lyndon B. Johnson.

EO 11246 required every federal government contract to include a declaration that the contractor will not victimize any worker or candidate for work based upon race, creed, color, or nationwide origin.

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

However, the executive order signals that there may be altering enforcement top priorities in the brand-new administration. The order directs all federal firms to “fight prohibited private-sector DEI choices, requireds, 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 “suing corporations who use ‘woke’ policies to victimize their employees.”

In addition to revoking EO 11246, the Jan. 21 executive order advises each agency of the federal government to determine “approximately 9 possible civic compliance examinations” of economic sector entities within 120 days of the order – by May 21, employment 2025.

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

Organizations that may be targeted should ask:

– What is my organization’s threat tolerance?

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

– How will consumers and stakeholders respond?

What internal counsel needs to think of:

Assess any federal contracts and grants

– Determine if they contain any terms or conditions connected to DEI that may contravene existing laws and policies

Review your company’s existing DEI policies to comprehend your risk

– Get ready for increased examination and potential civil compliance examinations

Document, document, file

– Hiring and recruitment processes

– Performance examinations and promotion decisions

– Training materials and presence records

– Any changes to DEI policies

Implications for federal contractors

To name a few procedures, the Jan. 21 Executive Order requires the heads of federal companies to consist of specific terms in every contract or employment grant award:

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

– “A term requiring such counterparty or recipient to license that it does not run any programs promoting DEI that break any suitable 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 penalties on those who make false claims to the government in order to affect the payment or receipt of money or residential or commercial property.

The accreditation requirement brings a potential danger of litigation for federal specialists under the False Claims Act. In-house lawyers at federal specialists therefore have a particular interest in ensuring their organization’s policies, treatments, practices, interactions and material, are reviewed. Assess if modifications are needed to mitigate the threat of lawsuits.

Executive orders targeting illegal migration

President Trump’s flurry of executive orders included many – such as the Jan. 20 executive order “Protecting the American People Against Invasion” – focused on limiting unlawful migration and deporting illegal immigrants. The orders require enforcement actions by federal firms versus unlawful migration.

In-house lawyers must consider evaluating their company’s employment eligibility confirmation process. They may likewise want to think about whether the organization is prepared for reacting to an I-9 audit or a worksite enforcement action (or employment raid) by migration enforcement companies.

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

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

Have a look at helpful lists of factors to consider appropriate for internal legal representatives on the subject of I-9 audits and worksite enforcement actions.

If an employer does not comply with a civil administrative warrant provided by US Immigration and Customs Enforcement (ICE), there is a risk that the company might begin an I-9 audit if they felt an employer was obstructing their requirement to arrest a non-citizen employee, or in many cases obtain a criminal warrant from a judge if actions support it.

Steps internal counsel need to consider:

– Determine the number of workers might possibly be impacted

– Review your organization’s employment eligibility confirmation process

– Ensure your organization’s process is documented and defensible

– Implement and implement clear policies

– Monitor legal developments, consisting of litigation and enforcement assistance

Mitigate danger, remain active, and take brand-new chances

The recent executive orders will considerably affect international businesses. Legal departments and internal counsel will need to assist their organizations comprehend and adapt to modifications, making sure compliance or litigating when suitable.

A lot of the new administration’s decisions will play out over the coming months, consisting of new executive orders and legal challenges. The Docket will continue to monitor advancements. Global internal attorneys ought to prepare for rapid advancements related 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 previous 2 were both postponed by a month as the administration engages in settlements. Meanwhile, China has begun its own retaliatory steps on US items. He had actually previously revealed his intent to impose 25-percent intensifying tariffs on Colombia (an action that was eventually not taken).

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

Energy, environment, and health. The president also withdrew the United States from the Paris Climate Agreement and the World Health Organization, putting an early emphasis on American energy self-reliance and away from the previous administration’s global sustainability efforts.

Steps in-house counsel ought to consider:

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

– Assess the organization’s reliance on social networks platforms, such as for marketing functions, and the possible needs to backup social networks data and assets in the occasion their chosen platform ceases to be offered.

– Consider how advancements in the new administration’s approach to ecological, employment sustainability and governance concerns may affect the organization’s ESG method.

Disclaimer: The info in any resource in this site should not be construed as legal guidance or as a legal opinion on specific realities, and ought to not be thought about representing the views of its authors, its sponsors, and/or ACC. These resources are not planned as a conclusive statement on the subject dealt with. Rather, they are meant to work as a tool offering practical assistance and referrals for the hectic in-house specialist and other readers.