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

Remind me, what’s an executive order?

Executive orders are regulations bought by the president of the United States that direct federal government agencies and officials to take specific actions. While they are not laws, they have the force of law and impact how existing laws are carried out or employment enforced.

Executive orders impact the companies of the executive branch and for that reason do not need the approval of Congress. They need to 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Executive orders may be rescinded, overturned by future presidents, or challenged in court, and enforcement concerns can alter during any administration.

The new administration’s actions have significant effects beyond executive orders. For more on mitigating risk, global companies can take new opportunities by remaining nimble.

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

On Jan. 21, President Trump issued “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” which reverses various 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 contract to consist of a statement that the professional will not victimize any staff member or applicant for employment based on 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 workers.

However, the executive order signals that there may be changing enforcement top priorities in the brand-new administration. The order directs all federal companies to “fight prohibited 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 workplace, indicating his record of “taking legal action against corporations who use ‘woke’ policies to discriminate versus their workers.”

In addition to revoking EO 11246, the Jan. 21 executive order advises each agency of the federal government to determine “up to nine potential civic compliance investigations” of economic sector entities within 120 days of the order – by May 21, 2025.

The economic sector employment entities based on these investigations include publicly traded corporations, big nonprofits – consisting of bar associations – large foundations, and universities whose endowments go beyond US$ 1 billion.

Organizations that may be targeted should ask:

– What is my company’s threat tolerance?

– How will employees react to the company’s actions?

– How will customers and stakeholders react?

What internal counsel needs to think of:

Assess any federal contracts and grants

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

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

– Prepare for increased scrutiny and prospective civil compliance examinations

Document, file, document

– Hiring and recruitment processes

– Performance examinations and promo decisions

– Training materials and participation records

– Any changes to DEI policies

Implications for federal professionals

To name a few procedures, the Jan. 21 Executive Order needs the heads of federal firms to consist of particular terms in every contract or grant award:

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

– “A term requiring such counterparty or recipient to license that it does not operate any programs promoting DEI that breach any suitable 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 charges on those who make false claims to the government in order to influence the payment or invoice of money or residential or commercial property.

The certification requirement brings a prospective danger of litigation for federal professionals under the False Claims Act. In-house legal representatives at federal contractors hence have a particular interest in ensuring their organization’s policies, treatments, practices, interactions and material, are evaluated. Assess if changes are required to alleviate the danger of litigation.

Executive orders targeting illegal immigration

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

In-house legal representatives ought to think about examining their company’s employment eligibility confirmation process. They may likewise wish to think about whether the company is gotten ready for reacting to an I-9 audit or a worksite enforcement action (or raid) by migration enforcement companies.

Sectors that might be particularly affected include agriculture, hospitality, and other industries 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 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 role to play in establishing and making sure constant application of the Form I-9 and E-Verify regulations the federal government utilizes to carry out and implement migration law, shares John W. Mazzeo, AGC, director of I-9 and E-Verify compliance for Vertical Screen, Inc., in a 2024 ACC Docket short article.

Take a look at helpful checklists of considerations appropriate for internal attorneys on the subject of I-9 audits and worksite enforcement actions.

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

counsel must consider:

– Determine the number of workers might potentially be impacted

– Review your company’s employment eligibility confirmation procedure

– Ensure your company’s process is documented and defensible

– Implement and impose clear policies

– Monitor legal advancements, including litigation and enforcement guidance

Mitigate threat, remain active, and take new opportunities

The current executive orders will significantly impact worldwide companies. Legal departments and internal counsel will need to help their companies comprehend and adjust to changes, ensuring compliance or litigating when proper.

Many of the brand-new administration’s choices will play out over the coming months, consisting of brand-new executive orders and legal challenges. The Docket will continue to monitor developments. Global in-house legal representatives need to get ready for fast advancements 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 additional tariffs on imports from China. The previous 2 were both postponed by a month as the administration participates in negotiations. Meanwhile, China has started its own retaliatory measures on US items. He had formerly revealed his intent to enforce 25-percent intensifying tariffs on Colombia (an action that was ultimately not taken).

Technology and intellectual residential or commercial property. 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 restriction, 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 self-reliance and away from the previous administration’s global sustainability efforts.

Steps in-house counsel must consider:

– Assess the effect of prospective tariff boosts on supply chain and service continuity.

– Assess the company’s reliance on social media platforms, such as for marketing purposes, and the prospective needs to backup social networks information and properties in case their preferred platform stops to be available.

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

Disclaimer: The information in any resource in this website should not be construed as legal recommendations or as a legal opinion on particular realities, and should not be considered representing the views of its authors, its sponsors, and/or ACC. These resources are not meant as a conclusive declaration on the subject resolved. Rather, they are intended to serve as a tool providing useful assistance and referrals for the busy in-house practitioner and other readers.