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 regulations bought by the president of the United States that direct federal 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 implemented.

Executive orders affect the firms 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Executive orders may be rescinded, reversed by future presidents, or challenged in court, and enforcement concerns can change during any administration.

The brand-new administration's actions have far-reaching results beyond executive orders. For more on mitigating danger, worldwide companies can seize brand-new opportunities by remaining active.

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 numerous prior executive orders and memoranda, including Executive Order 11246 (EO 11246) checked in 1965 by President Lyndon B. Johnson.

EO 11246 required every federal government agreement to include a declaration that the contractor will not victimize any employee 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 the same for private-sector staff members.

However, the executive order signals that there may be changing enforcement concerns in the brand-new administration. The order directs all federal firms to "combat illegal 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 "suing corporations who use 'woke' policies to discriminate against their workers."

In addition to withdrawing EO 11246, the Jan. 21 executive order instructs each firm of the federal government to determine "as much as nine prospective civic compliance examinations" of private sector entities within 120 days of the order - by May 21, 2025.

The personal sector entities subject to these examinations consist of openly traded corporations, big nonprofits - consisting of bar associations - big structures, and universities whose endowments go beyond US$ 1 billion.

Organizations that may be targeted should ask:

- What is my organization's danger tolerance?
- How will employees respond to the business's actions?
- How will clients and stakeholders respond?
What internal counsel should consider:

Assess any federal agreements and grants

- Determine if they include any terms or conditions related to DEI that may contravene existing laws and guidelines
Review your company's existing DEI policies to comprehend your risk

- Get ready for increased scrutiny and prospective civil compliance examinations
Document, file, document

- Hiring and recruitment processes
- Performance assessments and promotion choices
- Training products and presence records
- Any modifications to DEI policies
Implications for federal specialists

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

- "A term requiring the contractual counterparty or grant recipient to concur that its compliance in all respects with all appropriate Federal anti-discrimination laws is material to the government's payment decisions for functions 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 penalties on those who make false claims to the government in order to affect the payment or invoice of money or home.

The accreditation requirement carries a possible threat of litigation for federal contractors under the False Claims Act. In-house lawyers at federal professionals hence have a specific interest in ensuring their organization's policies, treatments, practices, communications and material, are evaluated. Assess if changes are needed to mitigate the threat of litigation.

Executive orders targeting unlawful 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" - targeted at limiting prohibited migration and deporting prohibited immigrants. The orders call for enforcement actions by federal firms versus illegal immigration.

In-house legal representatives ought to think about evaluating their organization's employment eligibility verification procedure. They might likewise desire to consider whether the company is gotten ready for reacting to an I-9 audit or a worksite enforcement action (or raid) by migration enforcement firms.

Sectors that might be especially impacted include farming, 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 operate in hospitality, representing 7.1 percent of the workforce.

In-house counsel have an important role to play in developing and making sure consistent application of the Form I-9 and E-Verify guidelines the federal government utilizes to implement and 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 lists of considerations pertinent for internal attorneys on the topic of I-9 audits and worksite enforcement actions.

If an employer does not cooperate with a civil administrative warrant presented by US Immigration and Customs Enforcement (ICE), there is a threat that the firm might begin an I-9 audit if they felt a company was blocking their requirement to apprehend a non-citizen employee, or sometimes get a criminal warrant from a judge if actions support it.

Steps internal counsel must think about:

- Determine how many workers might possibly be affected
- Review your company's work eligibility confirmation process
- Ensure your company's process is documented and defensible
- Implement and implement clear policies
- Monitor legal advancements, including lawsuits and enforcement guidance
Mitigate risk, remain nimble, and seize brand-new chances

The current executive orders will considerably affect global companies. Legal departments and in-house counsel will need to assist their companies understand and adjust to modifications, guaranteeing compliance or litigating when proper.

A lot of the new administration's decisions will play out over the coming months, including new executive orders and legal challenges. The Docket will continue to keep an eye on developments. Global internal legal representatives should prepare for rapid advancements connected to:

Trade and tariffs. On Feb. 1, President Trump ordered the imposition of a 25-percent tariff on imports from Canada and Mexico, and 10-percent extra tariffs on imports from China. The former two were both delayed by a month as the administration engages in settlements. Meanwhile, China has actually started its own retaliatory steps on US goods. He had previously announced his intent to impose 25-percent escalating tariffs on Colombia (an action that was ultimately not taken).
Technology and employment intellectual residential or commercial property. Among the president's first actions was to rescind the previous administration's AI executive order. The brand-new administration also extended a grace period for TikTok's approaching ban, sending 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 emphasis on American energy self-reliance and far from the previous administration's international sustainability efforts.
Steps in-house counsel ought to consider:

- Assess the effect of prospective tariff boosts on supply chain and business continuity.
- Assess the company's dependence on social media platforms, such as for marketing functions, and the potential requirements to backup social media information and possessions in case their chosen platform stops to be offered.
- Consider how developments in the new administration's method to environmental, sustainability and governance problems might impact the company's ESG strategy.
Disclaimer: The information in any resource in this site ought to not be interpreted as legal suggestions or as a legal opinion on specific truths, and need to not be thought about representing the views of its authors, its sponsors, and/or ACC. These resources are not meant as a definitive declaration on the subject attended to. Rather, they are planned to function as a tool providing useful guidance and referrals for the busy in-house practitioner and other readers.