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

Remind me, what’s an executive order?

Executive orders are instructions ordered by the president of the United States that direct government firms and officials to take particular actions. While they are not laws, they have the force of law and effect how existing laws are implemented or imposed.

Executive orders affect the firms of the executive branch and for that reason do not require the approval of Congress. They should be within the president’s constitutional authority and may be challenged in court if considered unconstitutional.

Executive orders may be rescinded, reversed by future presidents, or challenged in court, and enforcement priorities can alter during any administration.

The brand-new administration’s actions have significant effects beyond executive orders. For more on mitigating threat, global organizations can take brand-new chances by remaining nimble.

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

On Jan. 21, President Trump released “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 needed every government contract to consist of a statement that the contractor will not victimize any staff member or applicant for work based upon race, creed, color, or national origin.

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

However, the executive order signals that there might be altering enforcement priorities in the new administration. The order directs all federal firms to “combat unlawful 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 workplace, pointing to his record of “taking legal action against corporations who utilize ‘woke’ policies to discriminate versus their workers.”

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

The economic sector entities subject to these investigations include openly traded corporations, large nonprofits – consisting of bar associations – large structures, and universities whose endowments go beyond US$ 1 billion.

Organizations that may be targeted should ask:

– What is my company’s danger tolerance?

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

– How will clients and stakeholders react?

What internal counsel needs to think of:

Assess any federal agreements and grants

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

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

– Prepare for increased examination and possible civil compliance examinations

Document, file, document

– Hiring and recruitment processes

– Performance examinations and promo decisions

– Training products and participation records

– Any modifications to DEI policies

Implications for federal specialists

Among other measures, the Jan. 21 Executive Order needs the heads of federal firms to include particular 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 appropriate Federal anti-discrimination laws is material to the federal government’s payment choices for purposes of section 3729( b)( 4) of title 31, United States Code”; and

– “A term requiring such counterparty or recipient to license that it does not operate any programs promoting DEI that violate any applicable 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 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 brings a potential threat of lawsuits for federal contractors under the False Claims Act. In-house attorneys at federal contractors thus have a particular interest in ensuring their organization’s policies, treatments, practices, communications and content, are reviewed. Assess if changes are needed to alleviate the danger of lawsuits.

Executive orders targeting unlawful immigration

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

In-house attorneys must think about reviewing their company’s work eligibility confirmation procedure. They may likewise wish to think about whether the company is prepared for responding to an I-9 audit or a worksite enforcement action (or raid) by migration enforcement companies.

Sectors that might be particularly affected include 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, employment representing 7.1 percent of the workforce.

In-house counsel have an important role to play in establishing and guaranteeing consistent application of the Form I-9 and E-Verify regulations the federal government uses to carry out and implement migration 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.

Check out helpful lists of factors to consider pertinent for internal legal representatives on the topic of I-9 audits and worksite enforcement actions.

If a company does not cooperate with a civil administrative warrant provided by US Immigration and Customs Enforcement (ICE), there is a danger that the agency could commence an I-9 audit if they felt an employer was obstructing their need to jail a non-citizen staff member, or sometimes acquire a criminal warrant from a judge if actions support it.

Steps in-house counsel need to consider:

– Determine how numerous employees might possibly be impacted

– Review your organization’s employment eligibility confirmation procedure

– Ensure your company’s process is documented and defensible

– Implement and enforce clear policies

– Monitor legal developments, consisting of litigation and enforcement assistance

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

The recent executive orders will substantially affect global businesses. Legal departments and in-house counsel will need to assist their companies comprehend and adjust to changes, making sure compliance or litigating when proper.

A number of the new administration’s decisions will play out over the coming months, including new executive orders and legal challenges. The Docket will continue to keep track of advancements. Global internal attorneys should prepare for fast developments associated with:

Trade and employment tariffs. On Feb. 1, President Trump bought 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 postponed by a month as the administration takes part in negotiations. Meanwhile, China has actually begun its own vindictive procedures on US goods. He had actually previously revealed his intent to impose 25-percent escalating tariffs on Colombia (an action that was not taken).

Technology and copyright. Among the president’s first actions was to rescind the previous administration’s AI executive order. The new administration likewise extended a grace duration for TikTok’s impending ban, sending waves throughout the innovation sector, employment both in the United States and abroad.

Energy, climate, 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 independence and away from the previous administration’s global sustainability efforts.

Steps in-house counsel need to consider:

– Assess the impact of potential tariff increases on supply chain and service connection.

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

– Consider how developments in the brand-new administration’s approach to environmental, sustainability and governance issues may affect the company’s ESG method.

Disclaimer: The info in any resource in this site should not be construed as legal advice or as a legal opinion on particular realities, and need 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 resolved. Rather, they are meant to work as a tool supplying practical assistance and referrals for employment the hectic in-house practitioner and other readers.