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 regulations ordered by the president of the United States that direct federal 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 executed or imposed.

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Executive orders may be rescinded, overturned by future presidents, or challenged in court, and enforcement top priorities can alter throughout any administration.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 danger, worldwide businesses can take brand-new chances by staying nimble.

Implications of the executive orders for DEI efforts and employment in private-sector companies

On Jan. 21, President Trump provided „Ending Illegal Discrimination and Restoring Merit-Based Opportunity,“ which reverses numerous 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 contract to consist of a statement that the professional will not discriminate against any staff member or candidate for work based upon race, creed, color, or national origin.

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

However, the executive order signals that there may be changing 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 rights office, his record of „taking legal action against corporations who utilize ‘woke’ policies to victimize their workers.“

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

The personal sector entities based on these examinations consist of openly traded corporations, big nonprofits – consisting of bar associations – big foundations, and universities whose endowments surpass US$ 1 billion.

Organizations that may be targeted should ask:

– What is my organization’s danger tolerance?

– How will workers respond to the business’s actions?

– How will customers and stakeholders react?

What in-house counsel ought to consider:

Assess any federal contracts and grants

– Determine if they consist of any terms or conditions connected to DEI that might clash with present laws and regulations

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

– Prepare for increased analysis and prospective civil compliance examinations

Document, document, document

– Hiring and recruitment processes

– Performance examinations and promo choices

– Training materials and presence records

– Any modifications to DEI policies

Implications for federal contractors

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

– „A term requiring the contractual counterparty or grant recipient to agree that its compliance in all respects with all relevant Federal anti-discrimination laws is product to the federal 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 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 false claims to the federal government in order to influence the payment or receipt of cash or home.

The accreditation requirement carries a prospective threat of lawsuits for federal specialists under the False Claims Act. In-house lawyers at federal professionals thus have a particular interest in guaranteeing their organization’s policies, treatments, practices, interactions and material, are evaluated. Assess if changes are needed to reduce the danger of litigation.

Executive orders targeting prohibited immigration

President Trump’s initial flurry of executive orders consisted of lots of – such as the Jan. 20 executive order „Protecting the American People Against Invasion“ – targeted at restricting unlawful migration and deporting unlawful immigrants. The orders require enforcement actions by federal firms versus illegal immigration.

In-house lawyers ought to consider reviewing their company’s employment eligibility confirmation procedure. They may also wish to consider 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 particularly affected consist of farming, hospitality, and other markets 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, employment representing 7.1 percent of the labor force.

In-house counsel have an essential role to play in establishing and ensuring consistent application of the Form I-9 and E-Verify regulations 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 post.

Take a look at informative lists of considerations appropriate for in-house attorneys on the topic 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 agency might begin an I-9 audit if they felt an employer was obstructing their need to jail a non-citizen staff member, or in some cases obtain a criminal warrant from a judge if actions support it.

Steps internal counsel should consider:

– Determine how many workers might possibly be affected

– Review your company’s work eligibility confirmation procedure

– Ensure your organization’s process is documented and defensible

– Implement and implement clear policies

– Monitor legal developments, consisting of lawsuits and enforcement guidance

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

The recent executive orders will substantially impact international organizations. Legal departments and in-house counsel will require to assist their organizations comprehend and adapt to changes, making sure compliance or litigating when appropriate.

A lot of the brand-new administration’s choices will play out over the coming months, consisting of new executive orders and legal challenges. The Docket will continue to keep an eye on developments. Global internal attorneys should get ready for fast advancements related to:

Trade and tariffs. On Feb. 1, President Trump purchased the imposition of a 25-percent tariff on imports from Canada and Mexico, and 10-percent additional tariffs on imports from China. The previous 2 were both postponed by a month as the administration engages in negotiations. Meanwhile, China has started its own vindictive measures on US products. He had previously announced his intent to enforce 25-percent escalating tariffs on Colombia (an action that was eventually not taken).

Technology and copyright. One of the president’s first actions was to rescind the previous administration’s AI executive order. The new administration also extended a grace duration for TikTok’s approaching ban, sending out 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 internal counsel should think about:

– Assess the impact of potential tariff boosts on supply chain and service connection.

– Assess the organization’s dependency on social media platforms, such as for marketing purposes, and the prospective requirements to backup social media information and possessions in the occasion their preferred platform ceases to be available.

– Consider how advancements in the new administration’s technique to environmental, sustainability and governance concerns may affect the company’s ESG method.

Disclaimer: The details in any resource in this site should not be construed as legal advice or as a legal viewpoint on specific realities, and should not be considered representing the views of its authors, its sponsors, and/or ACC. These resources are not intended as a conclusive statement on the subject dealt with. Rather, they are meant to act as a tool providing practical assistance and references for the hectic internal specialist and other readers.