2025 uS Executive Orders, DEI, and Employment: how In-house Lawyers can help the 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 officials to take specific actions. While they are not laws, they have the force of law and effect how existing laws are executed or imposed.

Executive orders affect the firms of the executive branch and therefore do not require the approval of Congress. They must be within the president’s constitutional authority and might be challenged in court if considered unconstitutional.

Executive orders may be rescinded, employment reversed by future presidents, or challenged in court, and enforcement concerns can alter during any administration.

The new administration’s actions have far-reaching results beyond executive orders. For more on mitigating danger, employment worldwide services can take brand-new opportunities by remaining active.

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 various previous executive orders and memoranda, consisting of Executive Order 11246 (EO 11246) signed in 1965 by President Lyndon B. Johnson.

EO 11246 needed every government contract to include a statement that the specialist will not discriminate against any employee 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 the same 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 “combat 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 rights office, pointing to his record of “suing corporations who use ‘woke’ policies to victimize their employees.”

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

The private sector entities subject to these investigations consist of openly traded corporations, employment big nonprofits – including bar associations – big structures, and universities whose endowments surpass US$ 1 billion.

Organizations that may be targeted should ask:

– What is my organization’s risk tolerance?

– How will employees react to the business’s actions?

– How will customers and stakeholders respond?

What in-house counsel should think of:

Assess any federal agreements and grants

– Determine if they contain any terms or conditions connected to DEI that might contrast with present laws and regulations

Review your organization’s existing DEI policies to understand your risk

– Get ready for increased analysis and possible civil compliance investigations

Document, document, file

– Hiring and recruitment processes

– Performance evaluations and promo decisions

– Training materials and participation records

– Any changes to DEI policies

Implications for federal specialists

To name a few measures, the Jan. 21 Executive Order requires the heads of federal companies 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 applicable Federal anti-discrimination laws is product to the 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 certify that it does not operate any programs promoting DEI that violate any applicable 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 charges on those who make incorrect claims to the government in order to influence the payment or invoice of cash or home.

The certification requirement brings a prospective threat of lawsuits for federal specialists under the False Claims Act. In-house legal representatives at federal contractors therefore have a specific interest in ensuring their organization’s policies, treatments, practices, interactions and content, are examined. Assess if changes are required to mitigate the danger of litigation.

Executive orders targeting unlawful migration

President Trump’s initial flurry of executive orders consisted of numerous – such as the Jan. 20 executive order “Protecting the American People Against Invasion” – intended at limiting prohibited immigration and employment deporting unlawful immigrants. The orders call for enforcement actions by federal agencies versus prohibited immigration.

In-house legal representatives ought to think about evaluating their organization’s work eligibility confirmation process. They may also wish to think about whether the organization is prepared for responding to an I-9 audit or a worksite enforcement action (or raid) by immigration enforcement companies.

Sectors that may be especially impacted include agriculture, hospitality, and other markets such as building. From 2020-2022, 42 percent of crop farmworkers held no work permission, according to the US Department of Agriculture. The American Immigration Council estimates that more than one million undocumented immigrants operate in hospitality, representing 7.1 percent of the labor force.

In-house counsel have an important role to play in establishing and ensuring consistent application of the Form I-9 and E-Verify guidelines the federal government utilizes to implement and impose 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.

Take a look at informative lists of considerations appropriate for in-house legal representatives on the subject 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 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 some cases acquire a criminal warrant from a judge if actions support it.

Steps internal counsel should think about:

– Determine how numerous workers might potentially be affected

– Review your company’s work eligibility confirmation procedure

– Ensure your organization’s procedure is recorded and defensible

– Implement and enforce clear policies

– Monitor legal developments, including litigation and enforcement guidance

Mitigate threat, stay nimble, and take brand-new chances

The current executive orders will substantially impact global companies. Legal departments and internal counsel will require to assist their companies comprehend and adjust to modifications, ensuring compliance or litigating when suitable.

A number of the brand-new administration’s choices will play out over the coming months, including new executive orders and legal challenges. The Docket will continue to monitor developments. Global internal attorneys should get ready for quick developments connected 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 from China. The former 2 were both delayed by a month as the administration takes part in negotiations. Meanwhile, China has actually started its own retaliatory procedures on US items. He had formerly announced his intent to impose 25-percent intensifying tariffs on Colombia (an action that was eventually not taken).

Technology and copyright. Among the president’s very first actions was to rescind the previous administration’s AI executive order. The brand-new administration likewise extended a grace period for TikTok’s approaching ban, sending waves throughout the technology sector, both in the United States and abroad.

Energy, employment 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 far from the previous administration’s global sustainability efforts.

Steps internal counsel must think about:

– Assess the effect of possible tariff increases on supply chain and organization continuity.

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

– Consider how advancements in the brand-new administration’s approach to ecological, sustainability and governance concerns might impact the company’s ESG technique.

Disclaimer: The information in any resource in this website ought to not be construed as legal recommendations or as a legal opinion on specific facts, and must not be considered representing the views of its authors, its sponsors, and/or ACC. These resources are not intended as a conclusive declaration on the subject attended to. Rather, they are intended to function as a tool offering practical guidance and referrals for the hectic in-house specialist and other readers.