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

Remind me, what’s an executive order?

Executive orders are regulations ordered by the president of the United States that direct government firms and officials to take specific actions. While they are not laws, they have the force of law and effect how existing laws are carried out or enforced.

Executive orders affect the companies 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Executive orders might be rescinded, reversed by future presidents, or challenged in court, and enforcement concerns can change throughout any administration.

The new administration’s actions have significant effects beyond executive orders. For more on mitigating danger, worldwide organizations can take new opportunities by remaining nimble.

Implications of the executive orders for DEI efforts and employment 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, consisting of Executive Order 11246 (EO 11246) signed in 1965 by President Lyndon B. Johnson.

EO 11246 required every government contract to consist of a declaration that the contractor will not victimize any staff member or applicant for employment based on race, creed, color, or national origin.

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

However, the executive order signals that there might be altering enforcement top priorities in the new administration. The order directs all federal firms to “fight prohibited private-sector DEI choices, requireds, 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 “suing corporations who use ‘woke’ policies to discriminate versus their employees.”

In addition to revoking EO 11246, the Jan. 21 executive order advises each firm 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 based on these investigations consist of publicly traded corporations, big nonprofits – consisting of 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 respond to the business’s actions?

– How will customers and stakeholders respond?

What internal counsel ought to believe about:

Assess any federal contracts and grants

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

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

– Prepare for increased scrutiny and potential civil compliance investigations

Document, document, file

– Hiring and recruitment procedures

– Performance evaluations and promotion decisions

– Training materials and attendance records

– Any changes to DEI policies

Implications for federal professionals

Among other measures, the Jan. 21 Executive Order needs the heads of federal companies to consist of specific terms in every agreement or grant award:

– “A term requiring the contractual counterparty or grant recipient to agree that its compliance in all aspects with all suitable Federal anti-discrimination laws is product to the federal government’s payment decisions for functions 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 breach any appropriate 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 federal government in order to influence the payment or receipt of cash or home.

The certification requirement carries a possible threat of lawsuits for federal contractors under the False Claims Act. In-house attorneys at federal professionals therefore have a particular interest in guaranteeing their organization’s policies, treatments, practices, interactions and content, are evaluated. Assess if adjustments are needed to alleviate the risk of litigation.

Executive orders targeting prohibited 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” – focused on restricting prohibited migration and deporting unlawful immigrants. The orders require enforcement actions by federal companies against illegal migration.

In-house attorneys should think about examining their organization’s employment eligibility verification procedure. They might also want to think about whether the organization 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 consist of agriculture, hospitality, 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 operate in hospitality, representing 7.1 percent of the workforce.

In-house counsel have an important role to play in developing and guaranteeing constant application of the Form I-9 and E-Verify regulations the federal government utilizes to implement and impose immigration law, employment 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 lists of considerations appropriate for in-house attorneys on the subject of I-9 audits and worksite enforcement actions.

If a company does not work together 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 requirement to apprehend a non-citizen employee, or in many cases obtain a criminal warrant from a judge if actions support it.

Steps internal counsel must think about:

– Determine how many staff members could possibly be impacted

– Review your organization’s employment eligibility verification procedure

– Ensure your company’s procedure is documented and defensible

– Implement and enforce clear policies

– Monitor legal developments, including lawsuits and enforcement assistance

Mitigate threat, remain nimble, and take new chances

The current executive orders will considerably impact international businesses. Legal departments and employment internal counsel will need to help their companies comprehend and adapt to modifications, making sure compliance or litigating when appropriate.

A number of the new administration’s decisions will play out over the coming months, including new executive orders and legal obstacles. The Docket will continue to keep an eye on developments. Global internal lawyers should prepare for quick advancements connected to:

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 negotiations. Meanwhile, China has begun its own retaliatory procedures on US items. He had previously revealed his intent to enforce 25-percent intensifying tariffs on Colombia (an action that was eventually not taken).

Technology and intellectual home. Among the president’s very first actions was to rescind the previous administration’s AI executive order. The brand-new administration also extended a grace duration for TikTok’s approaching restriction, sending waves throughout the innovation sector, both in the United States and abroad.

Energy, climate, and health. The president likewise withdrew the United States from the Paris Climate Agreement and employment the World Health Organization, putting an early focus on American energy independence and away from the previous administration’s global sustainability efforts.

counsel must consider:

– Assess the impact of prospective tariff boosts on supply chain and business continuity.

– Assess the company’s reliance on social networks platforms, such as for marketing purposes, and the prospective requirements to backup social networks information and properties in case their chosen platform ceases to be offered.

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

Disclaimer: The information in any resource in this website should not be construed as legal recommendations or employment as a legal opinion on specific facts, 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 conclusive statement on the subject attended to. Rather, employment they are planned to serve as a tool providing practical guidance and references for the busy in-house specialist and other readers.