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

Remind me, what’s an executive order?

Executive orders are directives 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 effect how existing laws are executed or implemented.

Executive orders affect the agencies of the executive branch and therefore do not require the approval of Congress. They must 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Executive orders may be rescinded, overturned by future presidents, or challenged in court, and enforcement priorities can alter during any administration.

The brand-new administration’s actions have significant effects beyond executive orders. For more on mitigating danger, global companies can take new chances by staying active.

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

On Jan. 21, President Trump released “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” which reverses numerous previous executive orders and memoranda, consisting of 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 worker or applicant for employment based on race, creed, color, or national origin.

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

However, the executive order signals that there may be altering enforcement concerns in the brand-new administration. The order directs all federal firms to “combat illegal private-sector DEI preferences, requireds, policies, programs, and activities.”

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

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

The economic sector entities subject to these examinations include publicly traded corporations, big nonprofits – including bar associations – large foundations, and universities whose endowments surpass US$ 1 billion.

Organizations that may be targeted should ask:

– What is my organization’s risk tolerance?

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

– How will consumers and stakeholders respond?

What internal counsel ought to think of:

Assess any federal agreements and grants

– Determine if they contain any terms or conditions connected to DEI that might contravene present laws and policies

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

– Get ready for increased scrutiny and possible civil compliance investigations

Document, file, document

– Hiring and recruitment procedures

– Performance examinations and promo choices

– Training materials and attendance 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 agreement or grant award:

– “A term needing the legal counterparty or grant recipient to concur that its compliance in all respects with all suitable Federal anti-discrimination laws is material to the federal government’s payment choices for purposes of area 3729( b)( 4) of title 31, United States Code”; and

– “A term needing such counterparty or recipient to accredit that it does not operate 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 imposes civil penalties on those who make false claims to the government in order to influence the payment or employment invoice of money or home.

The certification requirement carries a potential threat of lawsuits for federal contractors under the False Claims Act. In-house legal representatives at federal specialists therefore have a specific interest in guaranteeing their company’s policies, procedures, practices, interactions and material, employment are reviewed. Assess if adjustments are required to mitigate the danger of litigation.

Executive orders targeting unlawful immigration

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

In-house attorneys ought to consider reviewing their organization’s work eligibility confirmation procedure. They might likewise want to consider whether the company is prepared 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 agriculture, hospitality, and other industries such as building and construction. From 2020-2022, 42 percent of crop farmworkers held no work authorization, 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 a crucial function to play in developing and making sure consistent application of the Form I-9 and E-Verify regulations the federal government utilizes to execute 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.

Check out helpful checklists of considerations appropriate for internal lawyers on the topic 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 threat that the company might begin an I-9 audit if they felt an employer was obstructing their need to detain a non-citizen worker, or sometimes obtain a criminal warrant from a judge if actions support it.

Steps in-house counsel should think about:

– Determine the number of staff members could possibly be impacted

– Review your organization’s employment eligibility verification process

– Ensure your organization’s process is recorded and defensible

– Implement and enforce clear policies

– Monitor employment legal advancements, including lawsuits and enforcement guidance

Mitigate danger, employment stay active, and seize new opportunities

The current executive orders will significantly affect international businesses. Legal departments and internal counsel will require to assist their organizations understand and adapt to modifications, ensuring compliance or litigating when appropriate.

Much of the new administration’s choices will play out over the coming months, including new executive orders and legal challenges. The Docket will continue to keep an eye on advancements. Global internal lawyers ought to prepare for rapid developments connected 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 extra tariffs on imports from China. The previous two were both delayed by a month as the administration engages in negotiations. Meanwhile, China has actually begun its own vindictive steps on US products. He had formerly announced his intent to impose 25-percent escalating 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 new administration also extended a grace duration for TikTok’s upcoming restriction, sending waves throughout the 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 focus on American energy self-reliance and away from the previous administration’s worldwide sustainability efforts.

Steps internal counsel need to consider:

– Assess the effect of potential tariff increases on supply chain and company connection.

– Assess the company’s dependence on social networks platforms, such as for marketing functions, and the prospective requirements to backup social networks information and assets in case their preferred platform ceases to be available.

– Consider how advancements in the new administration’s technique to environmental, sustainability and governance issues might affect the organization’s ESG strategy.

Disclaimer: The info in any resource in this site ought to not be construed as legal advice or as a legal viewpoint on specific facts, and need to not be considered representing the views of its authors, its sponsors, and/or ACC. These resources are not intended as a definitive declaration on the subject resolved. Rather, they are planned to serve as a tool offering practical guidance and recommendations for the busy in-house practitioner and other readers.