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

Remind me, what’s an executive order?

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

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Executive orders might be rescinded, overturned by future presidents, or challenged in court, employment and enforcement priorities can alter during any administration.

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

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

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

EO 11246 needed every federal government agreement to include a statement that the professional will not discriminate versus any employee or candidate for work 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 employees.

However, the executive order signals that there might be altering enforcement in the brand-new administration. The order directs all federal companies to “fight illegal private-sector DEI preferences, requireds, policies, programs, and activities.”

In December 2024, President-elect Trump tapped Harmeet K. Dhillon to lead the Justice Department’s civil rights office, pointing to his record of “taking legal action against corporations who utilize ‘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 recognize “approximately 9 potential civic compliance investigations” of personal sector entities within 120 days of the order – by May 21, 2025.

The private sector entities subject to these examinations include publicly traded corporations, big nonprofits – including bar associations – big foundations, and universities whose endowments exceed US$ 1 billion.

Organizations that may be targeted should ask:

– What is my company’s risk tolerance?

– How will staff members react to the business’s actions?

– How will customers and stakeholders respond?

What internal counsel must consider:

Assess any federal agreements and grants

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

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

– Get ready for increased scrutiny and possible civil compliance examinations

Document, file, document

– Hiring and recruitment procedures

– Performance assessments and promotion choices

– Training materials and participation records

– Any modifications to DEI policies

Implications for federal contractors

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

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

– “A term needing such counterparty or recipient to license that it does not run any programs promoting DEI that violate any relevant 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 incorrect claims to the government in order to influence the payment or receipt of money or home.

The certification requirement brings a possible threat of lawsuits for federal contractors under the False Claims Act. In-house attorneys at federal professionals therefore have a specific interest in ensuring their organization’s policies, procedures, practices, interactions and content, are reviewed. Assess if changes are required to mitigate the risk of lawsuits.

Executive orders targeting unlawful immigration

President Trump’s preliminary flurry of executive orders consisted of many – such as the Jan. 20 executive order “Protecting the American People Against Invasion” – aimed at limiting prohibited immigration and deporting prohibited immigrants. The orders call for enforcement actions by federal firms against prohibited immigration.

In-house attorneys should consider evaluating their organization’s work eligibility confirmation process. They may also wish to consider whether the organization is prepared for responding to an I-9 audit or a worksite enforcement action (or raid) by immigration enforcement firms.

Sectors that might be particularly 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 estimates that more than one million undocumented immigrants work in hospitality, representing 7.1 percent of the labor force.

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

Check out informative checklists of considerations relevant for internal lawyers on the subject of I-9 audits and worksite enforcement actions.

If a company does not comply with a civil administrative warrant provided by US Immigration and Customs Enforcement (ICE), there is a threat that the firm could commence an I-9 audit if they felt an employer was obstructing their requirement to detain a non-citizen worker, or sometimes get a criminal warrant from a judge if actions support it.

Steps in-house counsel need to think about:

– Determine the number of staff members could possibly be impacted

– Review your company’s employment eligibility confirmation process

– Ensure your company’s procedure is recorded and defensible

– Implement and impose clear policies

– Monitor legal developments, including lawsuits and enforcement guidance

Mitigate threat, remain nimble, and take new chances

The recent executive orders will significantly impact international organizations. Legal departments and in-house counsel will need to help their organizations understand and adapt to changes, making sure compliance or litigating when appropriate.

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

Trade and tariffs. On Feb. 1, President Trump bought the imposition of a 25-percent tariff on imports from Canada and Mexico, and 10-percent additional tariffs on imports from China. The previous two were both postponed by a month as the administration participates in settlements. Meanwhile, China has started its own retaliatory procedures on US goods. He had previously announced his intent to enforce 25-percent escalating tariffs on Colombia (an action that was ultimately not taken).

Technology and copyright. One of 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 approaching ban, sending 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 focus on American energy self-reliance and away from the previous administration’s global sustainability efforts.

Steps in-house counsel should think about:

– Assess the effect of potential tariff increases on supply chain and service continuity.

– Assess the company’s reliance on social media platforms, such as for marketing functions, and employment the possible requirements to backup social networks data and assets in the event their preferred platform ceases to be available.

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

Disclaimer: The information in any resource in this site need to not be construed as legal guidance or as a legal viewpoint on particular truths, and ought to not be thought about representing the views of its authors, its sponsors, and/or ACC. These resources are not intended as a definitive statement on the subject dealt with. Rather, they are meant to function as a tool offering useful guidance and referrals for the busy internal practitioner and other readers.