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

Remind me, what’s an executive order?

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

Executive orders affect the companies 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Executive orders may be rescinded, overturned by future presidents, or challenged in court, and enforcement top priorities can alter throughout any administration.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 brand-new administration’s actions have far-reaching effects beyond executive orders. For more on mitigating risk, global companies can take new chances by staying active.

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

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

EO 11246 required every federal government contract to include a statement that the specialist will not discriminate against any employee or applicant for employment 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 altering enforcement top priorities in the new administration. The order directs all federal agencies to “combat unlawful 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 rights office, pointing to his record of “suing corporations who utilize ‘woke’ policies to victimize their workers.”

In addition to revoking EO 11246, the Jan. 21 executive order each agency of the federal government to identify “up to 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 openly traded corporations, large nonprofits – including bar associations – big 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 employees react to the business’s actions?

– How will consumers and stakeholders respond?

What in-house counsel must consider:

Assess any federal contracts and grants

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

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

– Get ready for increased scrutiny and possible civil compliance investigations

Document, employment document, document

– Hiring and recruitment procedures

– Performance assessments and promotion choices

– Training materials and participation records

– Any modifications to DEI policies

Implications for federal specialists

Among other measures, the Jan. 21 Executive Order requires the heads of federal agencies to consist of particular terms in every contract or grant award:

– “A term requiring the contractual counterparty or grant recipient to concur that its compliance in all respects with all suitable 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 needing such counterparty or recipient to certify that it does not operate any programs promoting DEI that breach 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 enforces civil penalties on those who make false claims to the government in order to influence the payment or invoice of cash or residential or commercial property.

The certification requirement carries a possible risk of lawsuits for federal contractors under the False Claims Act. In-house legal representatives at federal specialists therefore have a specific interest in ensuring their company’s policies, treatments, practices, interactions and material, are evaluated. Assess if changes are required to mitigate the danger of lawsuits.

Executive orders targeting illegal migration

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

In-house legal representatives should consider reviewing their organization’s work eligibility verification process. They might also desire to consider whether the company is prepared for reacting to an I-9 audit or a worksite enforcement action (or raid) by immigration enforcement companies.

Sectors that may 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 authorization, 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 employment force.

In-house counsel have an essential function to play in developing and guaranteeing consistent application of the Form I-9 and E-Verify regulations the federal government uses 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 factors to consider relevant for internal attorneys on the subject of I-9 audits and worksite enforcement actions.

If a company does not cooperate with a civil administrative warrant presented by US Immigration and Customs Enforcement (ICE), there is a risk that the company could start an I-9 audit if they felt a company was blocking their need to arrest a non-citizen employee, or in some cases get a criminal warrant from a judge if actions support it.

Steps internal counsel must consider:

– Determine how numerous staff members could potentially be impacted

– Review your organization’s employment eligibility verification procedure

– Ensure your company’s procedure is documented and defensible

– Implement and enforce clear policies

– Monitor legal advancements, consisting of litigation and enforcement assistance

Mitigate threat, stay active, and take new chances

The current executive orders will significantly impact global organizations. Legal departments and in-house counsel will require to help their companies comprehend and adapt to modifications, guaranteeing compliance or litigating when suitable.

Many of the new administration’s decisions will play out over the coming months, employment consisting of brand-new executive orders and legal challenges. The Docket will continue to monitor advancements. Global internal legal representatives ought to prepare 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 imports from China. The former 2 were both postponed by a month as the administration participates in negotiations. Meanwhile, China has started its own retaliatory measures on US products. He had previously revealed his intent to enforce 25-percent escalating tariffs on Colombia (an action that was ultimately not taken).

Technology and copyright. 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 ban, sending out 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 focus on American energy independence and far from the previous administration’s international sustainability efforts.

Steps internal counsel need to consider:

– Assess the effect of possible tariff boosts on supply chain and company connection.

– Assess the organization’s dependence on social networks platforms, such as for marketing functions, and the prospective requirements to backup social networks information and possessions in the occasion their preferred platform ceases to be offered.

– Consider how advancements in the new administration’s approach to environmental, sustainability and governance issues might affect the company’s ESG method.

Disclaimer: The info in any resource in this site should not be interpreted as legal guidance or as a legal viewpoint on particular realities, and must not be considered representing the views of its authors, its sponsors, and/or ACC. These resources are not meant as a conclusive statement on the subject addressed. Rather, they are planned to function as a tool supplying useful guidance and references for the hectic internal specialist and other readers.