2025 United States Executive Orders, DEI, and Employment: how In-house Lawyers can Assist Business
Remind me, what’s an executive order?
Executive orders are regulations ordered by the president of the United States that direct government agencies and authorities to take particular actions. While they are not laws, they have the force of law and impact how existing laws are implemented or imposed.
Executive orders affect the firms of the executive branch and therefore do not need the approval of Congress. They should be within the president’s constitutional authority and might be challenged in court if considered unconstitutional.
Executive orders may be rescinded, reversed by future presidents, or challenged in court, and enforcement priorities can alter throughout any administration.
The new administration’s actions have far-reaching results beyond executive orders. For more on mitigating threat, international organizations can seize new chances by remaining nimble.
Implications of the executive orders for DEI initiatives and employment in private-sector employment organizations
On Jan. 21, President Trump issued “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” which reverses different prior executive orders and memoranda, including Executive Order 11246 (EO 11246) signed in 1965 by President Lyndon B. Johnson.
EO 11246 needed every federal government agreement to include a statement that the professional will not victimize any staff member or candidate for employment based on race, creed, color, or national origin.
Despite President Trump’s new executive order, the underlying federal anti-discrimination law remains the same for private-sector employees.
However, the executive order signals that there might be changing enforcement concerns in the brand-new administration. The order directs all federal agencies 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 rights workplace, pointing to his record of “suing corporations who utilize ‘woke’ policies to victimize their workers.”
In addition to withdrawing EO 11246, the Jan. 21 executive order instructs each agency of the federal government to recognize “up to nine possible civic compliance investigations” of private 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 structures, and universities whose endowments exceed US$ 1 billion.
Organizations that may be targeted should ask:
– What is my organization’s risk tolerance?
– How will workers respond to the business’s actions?
– How will consumers and stakeholders respond?
What in-house counsel must consider:
Assess any federal contracts and grants
– Determine if they consist of any terms or conditions associated with DEI that may contrast with existing laws and policies
Review your organization’s existing DEI policies to comprehend your threat
– Prepare for increased analysis and possible civil compliance examinations
Document, file, document
– Hiring and recruitment procedures
– Performance assessments and promo decisions
– Training products and presence records
– Any to DEI policies
Implications for federal specialists
Among other measures, the Jan. 21 Executive Order requires the heads of federal firms to include particular 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 functions of section 3729( b)( 4) of title 31, United States Code”; and
– “A term needing such counterparty or recipient to certify that it does not run any programs promoting DEI that breach 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 imposes civil penalties on those who make incorrect claims to the government in order to influence the payment or receipt of money or residential or commercial property.
The accreditation requirement brings a possible risk of lawsuits for federal professionals under the False Claims Act. In-house legal representatives at federal professionals therefore have a specific interest in guaranteeing their company’s policies, treatments, practices, communications and content, are evaluated. Assess if modifications are needed to reduce the risk of litigation.
Executive orders targeting prohibited migration
President Trump’s preliminary flurry of executive orders consisted of many – such as the Jan. 20 executive order “Protecting the American People Against Invasion” – intended at limiting illegal immigration and employment deporting illegal immigrants. The orders call for enforcement actions by federal firms against unlawful immigration.
In-house attorneys should consider reviewing their company’s employment eligibility verification procedure. They might likewise wish to think about whether the company is gotten ready for reacting to an I-9 audit or employment a worksite enforcement action (or raid) by migration enforcement companies.
Sectors that might be particularly affected consist of farming, 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 work in hospitality, representing 7.1 percent of the workforce.
In-house counsel have a crucial role to play in establishing 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 post.
Take a look at helpful checklists of considerations pertinent for internal attorneys on the topic of I-9 audits and worksite enforcement actions.
If an employer does not work together with a civil administrative warrant presented by US Immigration and Customs Enforcement (ICE), employment there is a risk that the agency could begin an I-9 audit if they felt a company was blocking their need to arrest a non-citizen worker, or in some cases get a criminal warrant from a judge if actions support it.
Steps internal counsel ought to think about:
– Determine the number of workers could potentially be impacted
– Review your organization’s work eligibility confirmation procedure
– Ensure your company’s procedure is documented and defensible
– Implement and impose clear policies
– Monitor legal developments, including lawsuits and enforcement assistance
Mitigate risk, stay active, and take brand-new opportunities
The recent executive orders will substantially impact worldwide companies. Legal departments and in-house counsel will need to assist their companies comprehend and adapt to changes, ensuring compliance or litigating when appropriate.
A lot 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 in-house lawyers ought to get ready for rapid developments related to:
Trade and tariffs. On Feb. 1, President Trump bought the imposition of a 25-percent tariff on imports from Canada and Mexico, and 10-percent extra tariffs on imports from China. The previous 2 were both postponed by a month as the administration engages in settlements. Meanwhile, China has actually started its own retaliatory steps on US products. He had actually formerly announced his intent to impose 25-percent intensifying tariffs on Colombia (an action that was ultimately not taken).
Technology and intellectual residential or commercial property. One of the president’s first actions was to rescind the previous administration’s AI executive order. The brand-new administration likewise extended a grace period for TikTok’s impending ban, sending out waves throughout the technology sector, both in the United States and abroad.
Energy, environment, and employment 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 far from the previous administration’s worldwide sustainability efforts.
Steps in-house counsel ought to consider:
– Assess the effect of possible tariff increases on supply chain and service continuity.
– Assess the organization’s dependency on social media platforms, employment such as for marketing purposes, and the prospective needs to backup social networks data and assets in case their preferred platform stops to be available.
– Consider how advancements in the new administration’s method to environmental, sustainability and governance problems might affect the organization’s ESG method.
Disclaimer: The information in any resource in this site need to not be interpreted as legal recommendations or as a legal viewpoint on specific facts, and must not be thought about representing the views of its authors, its sponsors, and/or ACC. These resources are not planned as a definitive declaration on the subject addressed. Rather, they are intended to function as a tool offering useful assistance and referrals for the hectic internal practitioner and other readers.
