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

Remind me, what’s an executive order?

Executive orders are instructions ordered by the president of the United States that direct government agencies and officials to take particular actions. While they are not laws, they have the force of law and impact how existing laws are carried out or imposed.

Executive orders impact 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Executive orders may be rescinded, reversed by future presidents, or challenged in court, and enforcement top priorities can alter throughout any administration.

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

Implications of the executive orders for DEI efforts and work in private-sector organizations

On Jan. 21, President Trump provided “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” which reverses various prior executive orders and memoranda, consisting of Executive Order 11246 (EO 11246) signed in 1965 by President Lyndon B. Johnson.

EO 11246 needed every government agreement to consist of a statement that the specialist will not discriminate against any employee or applicant for work based on race, creed, color, or nationwide origin.

Despite President Trump’s brand-new executive order, the underlying federal anti-discrimination law stays the same for private-sector staff members.

However, the executive order signals that there may be changing enforcement concerns in the new administration. The order directs all federal firms to “combat unlawful 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, indicating his record of “taking legal action against corporations who utilize ‘woke’ policies to victimize their workers.”

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

The economic sector entities subject to these examinations include publicly traded corporations, large nonprofits – consisting of bar associations – large structures, 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 react to the company’s actions?

– How will consumers and stakeholders respond?

What internal counsel ought to think of:

Assess any federal contracts and grants

– Determine if they include any terms or conditions connected to DEI that may conflict with existing laws and guidelines

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

– Prepare for increased scrutiny and prospective civil compliance examinations

Document, document, document

– Hiring and recruitment processes

– Performance evaluations and promotion choices

– Training products and participation records

– Any changes to DEI policies

Implications for federal specialists

To name a few measures, employment the Jan. 21 Executive Order requires the heads of federal companies to consist of specific terms in every contract or grant award:

– “A term needing 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 choices for purposes of area 3729( b)( 4) of title 31, United States Code”; and

– “A term requiring such counterparty or recipient to license that it does not run any programs promoting DEI that violate any appropriate 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 charges on those who make false claims to the federal government in order to influence the payment or invoice of money or residential or commercial property.

The certification requirement carries a possible risk of litigation for federal specialists under the False Claims Act. In-house legal representatives at federal contractors hence have a specific interest in guaranteeing their company’s policies, procedures, practices, communications and material, are reviewed. Assess if changes are required to alleviate the threat of litigation.

Executive orders targeting illegal immigration

President Trump’s preliminary flurry of executive orders consisted of many – such as the Jan. 20 executive order “Protecting the American People Against Invasion” – targeted at limiting prohibited immigration and deporting unlawful immigrants. The orders require enforcement actions by federal firms versus unlawful immigration.

In-house legal representatives must think about reviewing their company’s work eligibility confirmation process. They may also wish to consider whether the organization is prepared for reacting to an I-9 audit or a worksite enforcement action (or raid) by migration enforcement firms.

Sectors that might be particularly affected include agriculture, hospitality, and other industries such as construction. 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 an essential role to play in establishing and ensuring consistent application of the Form I-9 and E-Verify policies the federal government uses to carry out 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 short article.

Have a look at informative lists of factors to consider relevant for in-house legal representatives on the subject of I-9 audits and worksite enforcement actions.

If an employer does not cooperate with a civil administrative warrant provided by US Immigration and Customs Enforcement (ICE), there is a risk that the firm might start an I-9 audit if they felt an employer was blocking their requirement to jail a non-citizen staff member, or employment in some cases obtain a criminal warrant from a judge if actions support it.

Steps internal counsel ought to consider:

– Determine the number of staff members might possibly be affected

– Review your organization’s employment eligibility confirmation process

– Ensure your organization’s process is recorded and defensible

– Implement and impose clear policies

– Monitor legal developments, consisting of lawsuits and enforcement assistance

Mitigate risk, stay nimble, and seize new chances

The current executive orders will significantly impact international businesses. Legal departments and in-house counsel will need to help their companies understand and adapt to changes, employment making sure compliance or litigating when suitable.

Many of the brand-new administration’s choices will play out over the coming months, consisting of brand-new executive orders and legal difficulties. The Docket will continue to monitor advancements. Global internal legal representatives ought to prepare for fast advancements related to:

Trade and tariffs. On Feb. 1, President Trump ordered the imposition of a 25-percent tariff on from Canada and Mexico, and 10-percent additional tariffs on imports from China. The former 2 were both delayed by a month as the administration participates in settlements. Meanwhile, China has begun its own vindictive measures on US items. He had actually previously announced his intent to impose 25-percent escalating tariffs on Colombia (an action that was ultimately not taken).

Technology and intellectual property. One of 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 upcoming restriction, sending waves throughout the technology 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 the World Health Organization, putting an early emphasis on American energy self-reliance and far from the previous administration’s worldwide sustainability efforts.

Steps in-house counsel ought to think about:

– Assess the effect of prospective tariff increases on supply chain and service continuity.

– Assess the company’s dependency on social networks platforms, such as for marketing purposes, and the prospective requirements to backup social networks data and assets in the event their preferred platform stops to be offered.

– Consider how developments in the brand-new administration’s technique to ecological, sustainability and governance issues may affect the company’s ESG technique.

Disclaimer: The information in any resource in this site ought to not be interpreted as legal advice 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 meant as a definitive declaration on the subject addressed. Rather, they are meant to work as a tool offering practical assistance and recommendations for the hectic internal specialist and other readers.