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

Remind me, what’s an executive order?

Executive orders are instructions ordered by the president of the United States that direct federal 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 executed or enforced.

Executive orders affect the agencies of the executive branch and for that reason do not require 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Executive orders may be rescinded, overturned by future presidents, or challenged in court, and enforcement top priorities can change throughout any administration.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 far-reaching results beyond executive orders. For more on mitigating threat, international organizations can seize new chances by remaining nimble.

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

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

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

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

However, the executive order signals that there may be altering enforcement concerns in the new administration. The order directs all federal companies to “fight prohibited 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 rights workplace, 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 advises each company of the federal government to recognize “approximately nine prospective civic compliance examinations” of economic 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 – big foundations, and universities whose endowments go beyond US$ 1 billion.

Organizations that may be targeted should ask:

– What is my company’s threat tolerance?

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

– How will clients and stakeholders respond?

What internal counsel ought to consider:

Assess any federal agreements and grants

– Determine if they contain any terms or conditions associated with DEI that may contravene present laws and employment regulations

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

– Prepare for increased scrutiny and potential civil compliance examinations

Document, file, file

– Hiring and recruitment procedures

– Performance assessments and promotion choices

– Training materials and participation records

– Any modifications to DEI policies

Implications for federal contractors

Among other procedures, the Jan. 21 Executive Order requires the heads of federal firms to consist of particular terms in every agreement or grant award:

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

– “A term requiring such counterparty or recipient to certify 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 enforces civil penalties on those who make false claims to the federal government in order to affect the payment or receipt of money or property.

The accreditation requirement carries a possible risk of litigation for federal contractors under the False Claims Act. In-house lawyers at federal contractors therefore have a particular interest in guaranteeing their organization’s policies, treatments, practices, communications and content, are reviewed. Assess if modifications are needed to alleviate the danger of litigation.

Executive orders targeting illegal immigration

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

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

Sectors that might be especially impacted include agriculture, hospitality, employment and other markets such as 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 approximates that more than one million undocumented immigrants operate in hospitality, representing 7.1 percent of the labor force.

In-house counsel have an important role to play in establishing and making sure consistent application of the Form I-9 and E-Verify guidelines the federal government utilizes to carry out 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 post.

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

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

Steps internal counsel ought to consider:

– Determine how numerous employees could possibly be affected

– Review your company’s employment eligibility verification process

– Ensure your organization’s procedure is recorded and defensible

– Implement and impose clear policies

– Monitor legal advancements, consisting of lawsuits and enforcement assistance

Mitigate risk, stay nimble, and seize brand-new chances

The recent executive orders will substantially affect worldwide businesses. Legal departments and internal counsel will need to help their companies understand and adjust to modifications, guaranteeing compliance or litigating when proper.

Much of the brand-new administration’s decisions will play out over the coming months, including brand-new executive orders and legal difficulties. The Docket will continue to keep an eye on advancements. Global internal lawyers must get ready for fast advancements related to:

Trade and tariffs. On Feb. 1, President Trump purchased the imposition of a 25-percent tariff on imports from Canada and Mexico, and 10-percent extra tariffs on imports from China. The former two were both delayed by a month as the administration takes part in negotiations. Meanwhile, China has begun its own vindictive procedures on US products. He had actually previously announced his intent to impose 25-percent intensifying tariffs on Colombia (an action that was eventually not taken).

Technology and intellectual residential or commercial property. One of the president’s first actions was to rescind the previous administration’s AI executive order. The brand-new administration likewise extended a grace period for TikTok’s approaching restriction, sending out waves throughout the innovation 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 international sustainability .

Steps internal counsel ought to consider:

– Assess the effect of possible tariff increases on supply chain and company connection.

– Assess the organization’s reliance on social networks platforms, such as for marketing purposes, and the prospective requirements to backup social networks data and assets in case their preferred platform stops to be offered.

– Consider how advancements in the new administration’s approach to ecological, sustainability and governance issues may impact the company’s ESG strategy.

Disclaimer: The info in any resource in this site need to not be interpreted as legal recommendations or as a legal viewpoint on specific truths, and need to not be considered representing the views of its authors, its sponsors, and/or ACC. These resources are not intended as a conclusive statement on the subject dealt with. Rather, they are planned to work as a tool supplying practical guidance and recommendations for employment the busy in-house professional and other readers.