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 regulations 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 implemented or imposed.

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Executive orders may be rescinded, overturned by future presidents, or challenged in court, and enforcement priorities can alter throughout any administration.

The new administration’s actions have far-reaching impacts beyond executive orders. For more on mitigating danger, global companies can seize new chances by staying active.

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

On Jan. 21, President Trump issued “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” which reverses different previous executive orders and memoranda, including 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 contractor will not discriminate versus any worker or applicant for employment based upon race, creed, color, or nationwide origin.

Despite President Trump’s 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 top priorities in the new administration. The order directs all federal agencies to “combat unlawful 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, pointing to his record of “taking legal action against corporations who use ‘woke’ policies to discriminate versus their employees.”

In addition to revoking EO 11246, the Jan. 21 executive order instructs each agency of the federal government to identify “approximately nine 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 investigations include publicly 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 workers react to the company’s actions?

– How will clients and stakeholders respond?

What in-house counsel should consider:

Assess any federal agreements and grants

– Determine if they contain any terms or conditions connected to DEI that may contravene existing laws and guidelines

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

– Get ready for increased examination and potential civil compliance investigations

Document, file, file

– Hiring and job recruitment procedures

– Performance examinations and promotion decisions

– Training materials and participation records

– Any changes to DEI policies

Implications for federal professionals

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

– “A term needing the contractual counterparty or grant recipient to concur that its compliance in all respects with all appropriate Federal anti-discrimination laws is product 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 accredit that it does not operate any programs promoting DEI that violate any relevant 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 federal government in order to affect the payment or invoice of cash or property.

The certification requirement brings a prospective threat of litigation for federal professionals under the False Claims Act. In-house legal representatives at federal professionals thus have a specific interest in ensuring their organization’s policies, procedures, practices, interactions and material, are examined. Assess if changes are required to mitigate the danger of lawsuits.

Executive orders targeting illegal migration

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 unlawful migration and deporting illegal immigrants. The orders call for enforcement actions by federal companies versus unlawful migration.

In-house attorneys ought to consider evaluating their company’s employment eligibility verification procedure. They may likewise desire to consider whether the organization is prepared for reacting to an I-9 audit or a worksite enforcement action (or raid) by migration enforcement companies.

Sectors that might be especially affected consist of agriculture, hospitality, and other markets such as building. 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, job 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 utilizes to execute and impose 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 factors to consider pertinent for job in-house attorneys on the subject 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 agency could begin an I-9 audit if they felt an employer was blocking their requirement to apprehend a non-citizen employee, or in some cases acquire a criminal warrant from a judge if actions support it.

Steps internal counsel need to think about:

– Determine how lots of staff members might potentially be affected

– Review your company’s work eligibility confirmation procedure

– Ensure your organization’s procedure is recorded and defensible

– Implement and impose clear policies

– Monitor legal advancements, consisting of litigation and enforcement guidance

Mitigate risk, stay nimble, and seize new chances

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

A lot of the new administration’s choices will play out over the coming months, consisting of brand-new executive orders and legal challenges. The Docket will to keep an eye on advancements. Global internal attorneys ought to prepare for fast advancements associated with:

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 former 2 were both delayed by a month as the administration takes part in settlements. Meanwhile, China has started its own vindictive procedures on US items. He had previously revealed his intent to impose 25-percent intensifying 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 brand-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 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 global sustainability efforts.

Steps in-house counsel need to think about:

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

– Assess the company’s dependency on social media platforms, job such as for marketing functions, and the possible requirements to backup social media information and possessions in the event their chosen platform stops to be available.

– Consider how advancements in the new administration’s method to ecological, sustainability and governance concerns may impact the company’s ESG strategy.

Disclaimer: The details in any resource in this site ought to not be construed as legal advice or as a legal opinion on particular realities, and should not be thought about 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 intended to function as a tool providing practical guidance and references for the busy internal professional and other readers.