2025 uS Executive Orders, DEI, and Employment: how In-house Lawyers can help Business
Remind me, what’s an executive order?
Executive orders are directives ordered by the president of the United States that direct government companies 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 impact the agencies 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 deemed unconstitutional.
Executive orders might be rescinded, overturned by future presidents, or challenged in court, and enforcement concerns can change throughout any administration.
The brand-new administration’s actions have significant results beyond executive orders. For more on mitigating threat, international services can seize new opportunities by staying 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 various previous 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 statement that the specialist will not discriminate versus 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 private-sector workers.
However, the executive order signals that there may be altering enforcement priorities in the new administration. The order directs all federal companies to “combat 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 office, pointing to his record of “suing corporations who use ‘woke’ policies to discriminate against their employees.”
In addition to withdrawing EO 11246, the Jan. 21 executive order advises each firm of the federal government to recognize “as much as nine possible civic compliance investigations” of private sector entities within 120 days of the order – by May 21, 2025.
The private sector entities subject to these investigations include openly traded corporations, large nonprofits – consisting of bar associations – large structures, and universities whose endowments exceed US$ 1 billion.
Organizations that may be targeted should ask:
– What is my organization’s danger tolerance?
– How will workers react to the company’s actions?
– How will customers and stakeholders react?
What in-house counsel must think about:
Assess any federal agreements and grants
– Determine if they contain any terms or conditions connected to DEI that may contravene present laws and guidelines
Review your organization’s existing DEI policies to understand your risk
– Prepare for increased analysis and possible civil compliance examinations
Document, document, file
– Hiring and recruitment procedures
– Performance examinations and promo decisions
– Training materials and participation records
– Any modifications to DEI policies
Implications for federal professionals
To name a few steps, the Jan. 21 Executive Order requires the heads of federal firms to consist of specific terms in every contract or grant award:
– “A term requiring the contractual counterparty or grant recipient to agree that its compliance in all aspects with all relevant Federal anti-discrimination laws is material to the government’s payment choices 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 operate any programs promoting DEI that break 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 false claims to the federal government in order to influence the payment or invoice of money or property.
The accreditation requirement carries a potential danger of lawsuits for federal professionals 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, are examined. Assess if modifications are needed to mitigate the danger of litigation.
Executive orders targeting unlawful immigration
President Trump’s preliminary flurry of executive orders consisted of lots of – such as the Jan. 20 executive order “Protecting the American People Against Invasion” – intended at restricting unlawful migration and employment deporting unlawful immigrants. The orders call for enforcement actions by federal companies against prohibited immigration.
In-house attorneys must think about examining their organization’s employment eligibility confirmation process. They might likewise wish to consider whether the company is gotten ready for reacting to an I-9 audit or a worksite enforcement action (or raid) by immigration enforcement firms.
Sectors that might be particularly affected consist of farming, hospitality, and other markets such as building. From 2020-2022, 42 percent of crop farmworkers held no work authorization, 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 workforce.
In-house counsel have a crucial role to play in developing and ensuring constant application of the Form I-9 and E-Verify guidelines the federal government utilizes to execute and 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 checklists of factors to consider appropriate for internal legal representatives on the subject of I-9 audits and worksite enforcement actions.
If an employer does not work together with a civil administrative warrant provided by US Immigration and Customs Enforcement (ICE), there is a risk that the firm could start an I-9 audit if they felt an employer was obstructing their requirement to apprehend a non-citizen worker, or in some cases obtain a criminal warrant from a judge if actions support it.
Steps internal counsel must consider:
– Determine how lots of staff members could potentially be impacted
– Review your company’s work eligibility verification procedure
– Ensure your organization’s procedure is documented and employment defensible
– Implement and enforce clear policies
– Monitor employment legal advancements, including lawsuits and enforcement assistance
Mitigate threat, stay active, and seize brand-new chances
The recent executive orders will significantly impact global businesses. Legal departments and internal counsel will require to help their organizations comprehend and adapt to changes, ensuring compliance or litigating when suitable.
Many of the new administration’s decisions will play out over the coming months, consisting of new executive orders and legal obstacles. The Docket will continue to keep an eye on developments. Global internal lawyers should prepare for fast developments related 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 former two were both postponed by a month as the administration engages in negotiations. Meanwhile, China has actually started its own retaliatory measures on US goods. He had actually previously announced his intent to enforce 25-percent escalating tariffs on Colombia (an action that was ultimately not taken).
Technology and copyright. Among 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 upcoming restriction, sending 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 independence and away from the previous administration’s worldwide sustainability efforts.
Steps internal counsel need to think about:
– Assess the effect of potential tariff increases on supply chain and service connection.
– Assess the company’s dependency on social media platforms, such as for marketing functions, and the prospective needs to backup social media information and assets in case their chosen platform stops to be offered.
– Consider how advancements in the brand-new administration’s method to environmental, sustainability and may impact the company’s ESG method.
Disclaimer: The information in any resource in this site ought to not be interpreted as legal suggestions or as a legal viewpoint on specific facts, and should not be thought about representing the views of its authors, its sponsors, and/or ACC. These resources are not meant as a definitive declaration on the subject addressed. Rather, they are planned to work as a tool providing useful guidance and referrals for the hectic in-house professional and other readers.
