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 bought by the president of the United States that direct federal government agencies and authorities to take specific 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 companies of the executive branch and for that reason do not need 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Executive orders may be rescinded, overturned by future presidents, or employment challenged in court, and enforcement top priorities can change throughout any administration.

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

Implications of the executive orders for DEI efforts and work in private-sector companies

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

EO 11246 needed every federal government agreement to consist of a statement that the specialist will not discriminate against any staff member or applicant for employment based on race, creed, color, or nationwide origin.

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

However, the executive order signals that there might be changing enforcement top priorities in the new administration. The order directs all federal agencies to “fight prohibited 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 liberties workplace, indicating his record of “taking legal action against corporations who use ‘woke’ policies to discriminate against their employees.”

In addition to withdrawing EO 11246, the Jan. 21 executive order instructs each agency of the federal government to recognize “approximately 9 possible civic compliance examinations” of private sector entities within 120 days of the order – by May 21, 2025.

The personal sector entities subject to these examinations consist of openly traded corporations, large nonprofits – including bar associations – big foundations, and universities whose endowments surpass 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 consumers and stakeholders respond?

What in-house counsel ought to think about:

Assess any federal agreements and grants

– Determine if they consist of any terms or conditions connected to DEI that may contravene existing laws and guidelines

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

– Get ready for increased analysis and potential civil compliance investigations

Document, document, file

– Hiring and recruitment processes

– Performance assessments and promotion decisions

– Training products and presence records

– Any modifications to DEI policies

Implications for federal contractors

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

– “A term requiring the legal counterparty or grant recipient to agree that its compliance in all aspects with all appropriate 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 requiring such counterparty or recipient to accredit that it does not run any programs promoting DEI that violate any appropriate 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 government in order to affect the payment or receipt of money or property.

The certification requirement brings a prospective danger of lawsuits for federal contractors under the False Claims Act. In-house lawyers at federal contractors therefore have a specific interest in guaranteeing their company’s policies, procedures, practices, communications and material, employment are reviewed. Assess if changes are required to reduce the risk of lawsuits.

Executive orders targeting unlawful migration

President Trump’s initial flurry of executive orders consisted of lots of – such as the Jan. 20 executive order “Protecting the American People Against Invasion” – focused on restricting prohibited immigration and deporting prohibited immigrants. The orders call for enforcement actions by federal agencies versus prohibited immigration.

In-house lawyers must think about examining their company’s work eligibility confirmation procedure. They might also wish to consider whether the company is gotten ready for reacting to an I-9 audit or a worksite enforcement action (or raid) by migration enforcement companies.

Sectors that might be especially affected include farming, hospitality, employment and other industries 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 approximates that more than one million undocumented immigrants work in hospitality, representing 7.1 percent of the labor force.

In-house counsel have an important role to play in developing and ensuring constant application of the Form I-9 and E-Verify policies the federal government utilizes to carry out and implement 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.

Check out informative checklists of considerations appropriate for internal attorneys on the topic of I-9 audits and worksite enforcement actions.

If a company does not comply with a civil administrative warrant presented by US Immigration and Customs Enforcement (ICE), there is a risk that the agency could start an I-9 audit if they felt a company was blocking their requirement to arrest a non-citizen worker, or in some cases get a criminal warrant from a judge if actions support it.

Steps internal counsel must think about:

– Determine how lots of employees could possibly be affected

– Review your company’s employment eligibility verification procedure

– Ensure your organization’s process is recorded and defensible

– Implement and impose clear policies

– Monitor legal advancements, including litigation and enforcement assistance

Mitigate threat, remain active, and seize brand-new opportunities

The current executive orders will considerably impact worldwide services. Legal departments and internal counsel will need to help their organizations comprehend and adapt to changes, ensuring compliance or litigating when appropriate.

A number of the new administration’s decisions will play out over the coming months, including brand-new executive orders and legal challenges. The Docket will continue to monitor developments. Global internal lawyers must get ready for fast developments associated with:

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 two were both postponed by a month as the administration takes part in settlements. Meanwhile, China has actually started its own vindictive measures on US goods. He had formerly revealed his intent to enforce 25-percent escalating tariffs on Colombia (an action that was eventually not taken).

Technology and copyright. One of the president’s very first actions was to rescind the previous administration’s AI executive order. The new administration also extended a grace period for TikTok’s upcoming restriction, sending out waves throughout the technology sector, both in the United States and 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 self-reliance and far from the previous administration’s international sustainability efforts.

Steps in-house counsel need to consider:

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

– Assess the company’s dependence on social networks platforms, such as for marketing functions, and the prospective requirements to backup social networks information and employment assets in the event their preferred platform stops to be available.

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

Disclaimer: The information in any resource in this website need to not be interpreted as legal suggestions or as a legal opinion on particular realities, and must not be thought about representing the views of its authors, its sponsors, and/or ACC. These resources are not meant as a conclusive declaration on the subject addressed. Rather, they are planned to work as a tool supplying practical guidance and references for the hectic internal practitioner and other readers.