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

Remind me, what’s an executive order?

Executive orders are directives purchased 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 implemented or implemented.

Executive orders impact the agencies of the executive branch and for that reason do not need the approval of Congress. They should be within the president’s constitutional authority and may be challenged in court if considered unconstitutional.

Executive orders may be rescinded, reversed by future presidents, or challenged in court, and enforcement priorities can change throughout any administration.

The brand-new administration’s actions have significant impacts beyond executive orders. For more on mitigating danger, international businesses can seize 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 released “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” which reverses numerous previous executive orders and memoranda, including Executive Order 11246 (EO 11246) signed in 1965 by President Lyndon B. Johnson.

EO 11246 required every government agreement to consist of a declaration that the specialist will not discriminate against any worker 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 might be altering enforcement priorities in the new administration. The order directs all federal agencies to “fight unlawful private-sector DEI preferences, mandates, policies, programs, and activities.”

In December 2024, President-elect Trump tapped Harmeet K. Dhillon to lead the Justice Department’s civil liberties workplace, indicating his record of “suing corporations who utilize ‘woke’ policies to discriminate versus their employees.”

In addition to revoking EO 11246, the Jan. 21 executive order each agency of the federal government to identify “as much as 9 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 examinations include publicly traded corporations, big 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 threat tolerance?

– How will staff members react to the business’s actions?

– How will customers and stakeholders react?

What internal counsel must think of:

Assess any federal agreements and grants

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

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

– Prepare for increased scrutiny and possible civil compliance examinations

Document, file, file

– Hiring and recruitment procedures

– Performance examinations and promotion decisions

– Training materials and presence records

– Any modifications to DEI policies

Implications for federal specialists

To name a few steps, the Jan. 21 Executive Order needs the heads of federal agencies to include specific terms in every agreement or grant award:

– “A term requiring the legal counterparty or grant recipient to concur that its compliance in all aspects with all suitable Federal anti-discrimination laws is material to the government’s payment choices 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 run any programs promoting DEI that break any relevant 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 affect the payment or receipt of cash or home.

The certification requirement carries a prospective threat of litigation for federal contractors under the False Claims Act. In-house lawyers at federal professionals thus have a particular interest in guaranteeing their organization’s policies, procedures, practices, communications and content, are reviewed. Assess if adjustments are needed to mitigate the threat of lawsuits.

Executive orders targeting prohibited immigration

President Trump’s preliminary flurry of executive orders included numerous – such as the Jan. 20 executive order “Protecting the American People Against Invasion” – intended at limiting unlawful migration and deporting prohibited immigrants. The orders require enforcement actions by federal firms against illegal migration.

In-house legal representatives should think about reviewing their organization’s work eligibility verification process. They may likewise wish to think about whether the organization is gotten ready for responding to an I-9 audit or a worksite enforcement action (or raid) by immigration enforcement companies.

Sectors that might be particularly impacted 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 operate in hospitality, representing 7.1 percent of the labor force.

In-house counsel have an essential function to play in establishing and ensuring constant application of the Form I-9 and E-Verify guidelines the federal government uses to execute and enforce 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.

Check out informative lists of factors to consider relevant for internal legal representatives on the subject of I-9 audits and worksite enforcement actions.

If an employer does not comply with a civil administrative warrant provided by US Immigration and Customs Enforcement (ICE), there is a risk that the company might commence an I-9 audit if they felt an employer was obstructing their need to arrest a non-citizen employee, or in many cases obtain a criminal warrant from a judge if actions support it.

Steps in-house counsel should think about:

– Determine the number of workers might possibly be affected

– Review your organization’s employment eligibility confirmation procedure

– Ensure your organization’s procedure is recorded and employment defensible

– Implement and implement clear policies

– Monitor legal developments, including litigation and enforcement guidance

Mitigate threat, stay nimble, and seize new chances

The current executive orders will significantly affect global organizations. Legal departments and internal counsel will require to assist their organizations comprehend and adapt to changes, making sure compliance or litigating when appropriate.

A lot of the new administration’s decisions will play out over the coming months, consisting of brand-new executive orders and legal challenges. The Docket will continue to keep track of developments. Global in-house legal representatives should get ready for quick developments associated with:

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 former two were both postponed by a month as the administration participates in negotiations. Meanwhile, China has actually started its own retaliatory steps 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 also extended a grace duration for TikTok’s impending restriction, sending out waves throughout the innovation sector, both in the United States and abroad.

Energy, climate, and health. The president also 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 international sustainability efforts.

Steps in-house counsel should consider:

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

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

– Consider how developments in the new administration’s technique to ecological, sustainability and governance concerns might affect the company’s ESG technique.

Disclaimer: The information in any resource in this website should not be interpreted as legal recommendations or as a legal viewpoint on specific facts, and need to not be thought about representing the views of its authors, its sponsors, and/or employment ACC. These resources are not meant as a definitive statement on the subject dealt with. Rather, they are meant to function as a tool providing practical assistance and referrals for the hectic in-house professional and other readers.