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 regulations purchased by the president of the United States that direct government firms and authorities to take specific 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 companies of the executive branch and for that reason do not require the approval of Congress. They need to be within the president’s constitutional authority and might be challenged in court if deemed unconstitutional.

Executive orders may be rescinded, reversed by future presidents, or challenged in court, and enforcement top priorities can alter throughout any administration.

The brand-new administration’s actions have significant effects beyond executive orders. For more on mitigating threat, worldwide organizations can seize brand-new chances by remaining nimble.

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

On Jan. 21, President Trump provided “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 required every government agreement to consist of a declaration that the contractor will not discriminate versus any employee or applicant for work 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 workers.

However, the executive order signals that there might be changing enforcement top priorities in the new administration. The order directs all federal agencies to “combat prohibited 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, pointing to his record of “suing corporations who use ‘woke’ policies to discriminate versus their employees.”

In addition to withdrawing EO 11246, the Jan. 21 executive order instructs each company of the federal government to determine “up to 9 prospective civic compliance examinations” of private sector entities within 120 days of the order – by May 21, 2025.

The personal sector job entities subject to these investigations consist of traded corporations, large nonprofits – including bar associations – large foundations, and universities whose endowments exceed US$ 1 billion.

Organizations that may be targeted should ask:

– What is my organization’s threat tolerance?

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

– How will consumers and stakeholders react?

What internal counsel must think about:

Assess any federal agreements and grants

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

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

– Get ready for increased analysis and potential civil compliance investigations

Document, document, document

– Hiring and recruitment procedures

– Performance evaluations and promotion decisions

– Training products and participation records

– Any modifications to DEI policies

Implications for federal professionals

Among other measures, the Jan. 21 Executive Order requires the heads of federal companies to include specific terms in every agreement or grant award:

– “A term requiring the legal counterparty or grant recipient to agree that its compliance in all aspects with all appropriate Federal anti-discrimination laws is material to the federal government’s payment decisions for purposes 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 violate any suitable 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 incorrect claims to the government in order to affect the payment or invoice of money or residential or job commercial property.

The certification requirement brings a potential danger of lawsuits for federal specialists under the False Claims Act. In-house legal representatives at federal contractors thus have a specific interest in ensuring their company’s policies, treatments, practices, job interactions and material, are evaluated. Assess if adjustments are needed to mitigate the threat of litigation.

Executive orders targeting prohibited migration

President Trump’s preliminary flurry of executive orders included many – such as the Jan. 20 executive order “Protecting the American People Against Invasion” – focused on restricting illegal immigration and deporting unlawful immigrants. The orders call for enforcement actions by federal firms against unlawful immigration.

In-house lawyers should think about examining their company’s employment eligibility confirmation process. They might also wish 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 might be particularly affected include agriculture, hospitality, and other markets such as construction. From 2020-2022, 42 percent of crop farmworkers held no work permission, according to the US Department of Agriculture. The American Immigration Council estimates that more than one million undocumented immigrants work in hospitality, representing 7.1 percent of the labor force.

In-house counsel have a crucial function to play in establishing and ensuring constant application of the Form I-9 and E-Verify policies the federal government utilizes to execute and enforce 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.

Take a look at useful lists of factors to consider relevant for in-house legal representatives 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 risk that the agency could commence an I-9 audit if they felt a company was obstructing their requirement to detain a non-citizen staff member, or in many cases obtain a criminal warrant from a judge if actions support it.

Steps internal counsel must think about:

– Determine the number of workers could potentially be affected

– Review your company’s employment eligibility confirmation procedure

– Ensure your company’s process is documented and defensible

– Implement and enforce clear policies

– Monitor legal advancements, including lawsuits and enforcement guidance

Mitigate threat, stay active, and take new chances

The current executive orders will considerably affect global services. Legal departments and internal counsel will need to help their companies comprehend and adapt to changes, guaranteeing compliance or litigating when proper.

A lot of the new administration’s choices will play out over the coming months, including brand-new executive orders and legal difficulties. The Docket will continue to keep an eye on developments. Global internal legal representatives should prepare for fast 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, job and 10-percent additional tariffs on imports from China. The former 2 were both postponed by a month as the administration participates in settlements. Meanwhile, China has actually begun its own vindictive measures 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 intellectual residential or job commercial property. Among the president’s very first actions was to rescind the previous administration’s AI executive order. The brand-new administration also extended a grace duration for TikTok’s upcoming ban, 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 focus on American energy independence and far from the previous administration’s worldwide sustainability efforts.

Steps in-house counsel ought to consider:

– Assess the effect of possible tariff increases on supply chain and service connection.

– Assess the organization’s dependency on social media platforms, such as for marketing functions, job and the possible requirements to backup social networks data and assets in the event their preferred platform ceases to be available.

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

Disclaimer: The info in any resource in this site ought to not be construed as legal recommendations or as a legal opinion on specific truths, and ought to not be considered representing the views of its authors, its sponsors, and/or ACC. These resources are not planned as a conclusive declaration on the subject attended to. Rather, job they are meant to serve as a tool providing practical guidance and references for the hectic internal professional and other readers.