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

Remind me, what’s an executive order?

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

Executive orders impact the firms of the executive branch and therefore do not require the approval of Congress. They should be within the president’s constitutional authority and may be challenged in court if considered unconstitutional.

Executive orders might be rescinded, reversed by future presidents, or challenged in court, and enforcement top priorities can change throughout any administration.

The brand-new administration’s actions have significant effects beyond executive orders. For more on mitigating risk, international companies can seize brand-new chances by staying nimble.

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

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

EO 11246 required every government agreement to include a statement that the professional will not victimize any staff member or applicant for employment based upon race, creed, color, or national 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 altering enforcement top priorities in the brand-new administration. The order directs all federal companies to “fight prohibited 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 utilize ‘woke’ policies to victimize their employees.”

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

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

Organizations that may be targeted should ask:

– What is my company’s risk tolerance?

– How will staff members respond to the business’s actions?

– How will clients and employment stakeholders respond?

What internal counsel should think of:

Assess any federal agreements and grants

– Determine if they include any terms or conditions associated with DEI that might contravene current laws and guidelines

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

– Prepare for increased analysis and possible civil compliance investigations

Document, file, document

– Hiring and recruitment procedures

– Performance assessments and promotion choices

– Training products and participation records

– Any changes to DEI policies

Implications for federal professionals

Among other procedures, the Jan. 21 Executive Order needs the heads of federal firms to consist of specific terms in every agreement or employment grant award:

– “A term requiring 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 government’s payment choices for functions of section 3729( b)( 4) of title 31, United States Code”; and

– “A term requiring such counterparty or recipient to license that it does not run any programs promoting DEI that violate any appropriate 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 penalties on those who make incorrect claims to the federal government in order to affect the payment or receipt of money or home.

The accreditation requirement carries a potential threat of lawsuits 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, communications and material, are reviewed. Assess if modifications are required to alleviate the threat of lawsuits.

Executive orders targeting unlawful immigration

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

In-house attorneys must consider examining their company’s work eligibility verification process. They might also want to think about whether the company is gotten ready for reacting to an I-9 audit or a worksite enforcement action (or raid) by immigration enforcement companies.

Sectors that may be especially impacted consist of agriculture, hospitality, and other industries such as building and 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 an important role to play in developing and ensuring consistent application of the Form I-9 and E-Verify regulations the federal government uses to carry out 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.

Have a look at helpful checklists of factors to consider pertinent for in-house legal representatives on the subject of I-9 audits and worksite enforcement actions.

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

Steps in-house counsel need to think about:

– Determine the number of employees could potentially be impacted

– Review your company’s work eligibility confirmation procedure

– Ensure your company’s process is documented and defensible

– Implement and enforce clear policies

– Monitor legal advancements, employment consisting of lawsuits and enforcement guidance

Mitigate danger, remain active, and take brand-new opportunities

The recent executive orders will substantially affect global businesses. Legal departments and in-house counsel will require to help their organizations comprehend and adjust to modifications, guaranteeing compliance or litigating when suitable.

Many of the new administration’s choices will play out over the coming months, including brand-new executive orders and legal obstacles. The Docket will continue to keep track of developments. Global in-house attorneys should get ready 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 additional tariffs on imports from China. The previous 2 were both delayed by a month as the administration engages in negotiations. Meanwhile, China has started its own vindictive steps on US items. He had previously revealed his intent to impose 25-percent intensifying 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 also extended a grace duration for TikTok’s impending ban, sending out waves throughout the technology sector, employment 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 emphasis on American energy independence and away from the previous administration’s global sustainability efforts.

Steps internal counsel must consider:

– Assess the impact of prospective tariff increases on supply chain and company continuity.

– Assess the company’s dependency on social media platforms, such as for functions, and the potential needs to backup social media information and properties in case their preferred platform ceases to be offered.

– Consider how developments in the brand-new administration’s technique to environmental, sustainability and governance issues might impact the organization’s ESG method.

Disclaimer: The details in any resource in this site ought to not be interpreted as legal suggestions or as a legal opinion on specific facts, and ought to not be thought about representing the views of its authors, its sponsors, and/or ACC. These resources are not meant as a conclusive statement on the subject resolved. Rather, they are planned to act as a tool providing practical guidance and recommendations for the hectic in-house professional and other readers.