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

Remind me, what’s an executive order?

Executive orders are directives purchased by the president of the United States that direct federal 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 carried out or imposed.

Executive orders impact the agencies of the executive branch and therefore do not require the approval of Congress. They should be within the president’s constitutional authority and might be challenged in court if deemed unconstitutional.

Executive orders might be rescinded, overturned by future presidents, or challenged in court, and enforcement top priorities can alter throughout any administration.

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

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

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) signed in 1965 by President Lyndon B. Johnson.

EO 11246 required every federal government agreement to consist of a declaration that the specialist will not discriminate against any employee or candidate for work based on race, creed, color, or national 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 changing enforcement priorities in the new administration. The order directs all federal firms to “combat 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 workers.”

In addition to withdrawing EO 11246, the Jan. 21 executive order advises each company of the federal government to determine “as much as 9 potential 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 publicly traded corporations, large nonprofits – consisting of bar associations – big 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 workers respond to the company’s actions?

– How will clients and stakeholders react?

What in-house counsel must consider:

Assess any federal contracts and grants

– Determine if they include any terms or conditions associated with DEI that might contrast with current laws and policies

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

– Get ready for increased examination and potential civil compliance investigations

Document, file, document

– Hiring and recruitment procedures

– Performance evaluations and promo decisions

– Training products and

– Any modifications to DEI policies

Implications for federal contractors

Among other measures, employment the Jan. 21 Executive Order requires the heads of federal firms to consist of specific terms in every contract or grant award:

– “A term needing the contractual counterparty or grant recipient to agree that its compliance in all aspects with all suitable Federal anti-discrimination laws is material to the 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 accredit that it does not operate any programs promoting DEI that breach 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 enforces civil penalties on those who make incorrect claims to the government in order to influence the payment or employment receipt of cash or property.

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

Executive orders targeting illegal migration

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

In-house attorneys should consider evaluating their company’s employment eligibility verification process. They might likewise wish to think about whether the company is prepared for reacting to an I-9 audit or a worksite enforcement action (or raid) by immigration enforcement firms.

Sectors that may be particularly affected consist of agriculture, hospitality, and other markets such as building and 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 operate in hospitality, representing 7.1 percent of the labor force.

In-house counsel have an essential role to play in establishing and guaranteeing consistent application of the Form I-9 and E-Verify guidelines 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 post.

Have a look at informative checklists of considerations pertinent for in-house lawyers on the topic 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 threat that the firm might commence an I-9 audit if they felt an employer was blocking their need to jail a non-citizen employee, or sometimes acquire a criminal warrant from a judge if actions support it.

Steps internal counsel should consider:

– Determine the number of workers might possibly be impacted

– Review your company’s employment eligibility verification process

– Ensure your organization’s process is recorded and defensible

– Implement and impose clear policies

– Monitor legal advancements, including lawsuits and enforcement guidance

Mitigate threat, remain nimble, and seize new chances

The current executive orders will substantially affect international services. Legal departments and internal counsel will require to assist their companies comprehend and adapt to modifications, making sure compliance or litigating when proper.

Many of the new administration’s choices will play out over the coming months, including brand-new executive orders and legal challenges. The Docket will continue to monitor developments. Global in-house attorneys need to prepare for fast advancements connected to:

Trade and employment 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 previous two were both delayed by a month as the administration engages in settlements. Meanwhile, China has actually begun its own vindictive measures on US items. He had formerly revealed his intent to enforce 25-percent escalating tariffs on Colombia (an action that was ultimately not taken).

Technology and copyright. Among the president’s very 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 technology sector, employment both in the United States and employment abroad.

Energy, environment, 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 away from the previous administration’s global sustainability efforts.

Steps internal counsel need to consider:

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

– Assess the company’s reliance on social media platforms, such as for marketing purposes, and the prospective needs to backup social networks data and properties in the event their preferred platform ceases to be available.

– Consider how advancements in the brand-new administration’s method to environmental, sustainability and governance issues might affect the organization’s ESG method.

Disclaimer: The information in any resource in this website must not be interpreted as legal guidance or as a legal viewpoint on specific facts, and should not be considered representing the views of its authors, its sponsors, and/or ACC. These resources are not planned as a conclusive statement on the subject addressed. Rather, they are planned to function as a tool providing practical guidance and referrals for the busy internal specialist and other readers.