2025 United States Executive Orders, DEI, and Employment: how In-house Lawyers can help Business
Remind me, what’s an executive order?
Executive orders are regulations purchased 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 impact how existing laws are implemented or enforced.
Executive orders affect the agencies of the executive branch and employment for that reason do not need the approval of Congress. They need to be within the president’s constitutional authority and might be challenged in court if deemed unconstitutional.
Executive orders might be rescinded, reversed by future presidents, or challenged in court, and top priorities can alter throughout any administration.
The new administration’s actions have far-reaching effects beyond executive orders. For more on mitigating threat, global organizations can take brand-new chances by remaining active.
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) checked in 1965 by President Lyndon B. Johnson.
EO 11246 required every government agreement to consist of a declaration that the professional will not victimize any staff member or applicant for employment based upon 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 workers.
However, the executive order signals that there may be altering enforcement priorities in the new administration. The order directs all federal firms to „combat illegal 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 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 identify „up to 9 prospective civic compliance investigations“ of economic sector entities within 120 days of the order – by May 21, 2025.
The private sector entities based on these examinations consist of publicly traded corporations, large nonprofits – consisting of bar associations – large foundations, and universities whose endowments go beyond US$ 1 billion.
Organizations that may be targeted should ask:
– What is my organization’s risk tolerance?
– How will staff members respond to the business’s actions?
– How will customers and stakeholders respond?
What internal counsel should consider:
Assess any federal contracts and grants
– Determine if they contain any terms or conditions connected to DEI that might contravene current laws and regulations
Review your company’s existing DEI policies to understand your risk
– Get ready for increased examination and possible civil compliance examinations
Document, file, file
– Hiring and recruitment processes
– Performance examinations and promo choices
– Training products and presence records
– Any modifications to DEI policies
Implications for federal professionals
Among other steps, the Jan. 21 Executive Order needs the heads of federal agencies to include specific terms in every agreement or grant award:
– „A term needing the contractual counterparty or grant recipient to concur that its compliance in all respects with all relevant Federal anti-discrimination laws is material to the government’s payment decisions for purposes of section 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 break 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 enforces civil penalties on those who make false claims to the government in order to influence the payment or employment receipt of cash or property.
The accreditation requirement brings a potential risk of lawsuits for federal professionals under the False Claims Act. In-house attorneys at federal contractors thus have a particular interest in guaranteeing their company’s policies, treatments, practices, communications and content, are examined. Assess if modifications are needed to mitigate the risk of lawsuits.
Executive orders targeting unlawful immigration
President Trump’s preliminary flurry of executive orders included many – such as the Jan. 20 executive order „Protecting the American People Against Invasion“ – focused on restricting illegal immigration and deporting illegal immigrants. The orders require enforcement actions by federal companies versus prohibited migration.
In-house lawyers must consider evaluating their company’s work eligibility confirmation process. They may likewise wish to think about whether the organization is prepared for responding to an I-9 audit or a worksite enforcement action (or raid) by migration enforcement firms.
Sectors that might be especially affected include farming, hospitality, and other industries such as building. From 2020-2022, 42 percent of crop farmworkers held no work authorization, employment 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 workforce.
In-house counsel have a crucial function to play in developing and making sure consistent application of the Form I-9 and E-Verify guidelines the federal government uses to carry out and employment 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 article.
Check out helpful lists of considerations relevant for in-house 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 firm could begin an I-9 audit if they felt a company was obstructing their requirement to apprehend a non-citizen staff member, or in some cases acquire a criminal warrant from a judge if actions support it.
Steps in-house counsel ought to think about:
– Determine the number of employees could possibly be impacted
– Review your company’s employment eligibility verification procedure
– Ensure your organization’s procedure is documented and defensible
– Implement and enforce clear policies
– Monitor legal developments, including lawsuits and employment enforcement assistance
Mitigate threat, remain active, and take brand-new chances
The recent executive orders will considerably impact global companies. Legal departments and internal counsel will require to assist their organizations comprehend and adjust to changes, guaranteeing compliance or litigating when suitable.
A number of the new administration’s choices will play out over the coming months, including new executive orders and legal difficulties. The Docket will continue to keep track of developments. Global internal lawyers need to prepare for fast developments related to:
Trade and tariffs. On Feb. 1, employment 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 former two were both delayed by a month as the administration engages in settlements. Meanwhile, China has begun its own vindictive procedures on US goods. He had formerly revealed his intent to impose 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 approaching restriction, sending waves throughout the technology 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 independence and far from the previous administration’s global sustainability efforts.
Steps in-house counsel must think about:
– Assess the effect of prospective tariff increases on supply chain and organization connection.
– Assess the company’s reliance on social networks platforms, such as for marketing purposes, and the potential needs to backup social networks data and possessions in the event their preferred platform stops to be offered.
– Consider how advancements in the new administration’s technique to ecological, sustainability and governance problems may impact the company’s ESG method.
Disclaimer: The information in any resource in this website need to not be interpreted as legal guidance or as a legal opinion on particular facts, and need to not be considered representing the views of its authors, its sponsors, and/or ACC. These resources are not meant as a conclusive declaration on the subject dealt with. Rather, they are meant to function as a tool providing useful guidance and references for the hectic in-house specialist and other readers.
