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

Remind me, what’s an executive order?

Executive orders are regulations purchased 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 executed or enforced.

Executive orders impact the agencies 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 may be challenged in court if considered unconstitutional.

Executive orders might be rescinded, overturned by future presidents, or challenged in court, and enforcement concerns can change during any administration.

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

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

On Jan. 21, President Trump issued “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” which reverses numerous prior 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 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 remains the same for private-sector employees.

However, the executive order signals that there may be altering enforcement concerns in the brand-new administration. The order directs all federal firms to “fight illegal 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 office, 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 agency of the federal government to identify “approximately nine potential civic compliance investigations” of economic sector employment entities within 120 days of the order – by May 21, 2025.

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

Organizations that may be should ask:

– What is my organization’s threat tolerance?

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

– How will clients and stakeholders react?

What in-house counsel should believe about:

Assess any federal agreements and employment grants

– Determine if they contain any terms or conditions associated with DEI that may conflict with existing laws and guidelines

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

– Prepare for increased examination and possible civil compliance investigations

Document, document, file

– Hiring and recruitment processes

– Performance evaluations and promotion choices

– Training products and presence records

– Any modifications to DEI policies

Implications for federal contractors

To name a few measures, the Jan. 21 Executive Order requires the heads of federal agencies to include particular terms in every agreement or grant award:

– “A term needing the contractual counterparty or grant recipient to concur that its compliance in all aspects with all applicable 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 needing such counterparty or recipient to certify that it does not run any programs promoting DEI that break 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 incorrect claims to the government in order to influence the payment or invoice of cash or residential or commercial property.

The certification requirement brings a prospective risk of litigation for federal contractors under the False Claims Act. In-house attorneys at federal specialists thus have a particular interest in ensuring their organization’s policies, procedures, practices, communications and material, are reviewed. Assess if modifications are required to alleviate the risk of lawsuits.

Executive orders targeting illegal migration

President Trump’s preliminary flurry of executive orders included numerous – such as the Jan. 20 executive order “Protecting the American People Against Invasion” – targeted at limiting illegal immigration and deporting prohibited immigrants. The orders call for enforcement actions by federal companies versus prohibited migration.

In-house attorneys should consider reviewing their organization’s work eligibility confirmation procedure. They might also want to think about whether the company is prepared for responding to an I-9 audit or employment a worksite enforcement action (or raid) by immigration enforcement firms.

Sectors that may be particularly affected consist of farming, hospitality, and other industries such as building and construction. From 2020-2022, 42 percent of crop farmworkers held no work authorization, 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 establishing and ensuring constant application of the Form I-9 and E-Verify policies the federal government uses to implement 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.

Check out useful checklists of factors to consider appropriate for internal lawyers 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 risk that the agency could commence an I-9 audit if they felt an employer was obstructing their requirement to jail a non-citizen employee, or in some cases acquire a criminal warrant from a judge if actions support it.

Steps in-house counsel should consider:

– Determine how numerous staff members might possibly be impacted

– Review your company’s employment eligibility verification process

– Ensure your organization’s process is recorded and defensible

– Implement and implement clear policies

– Monitor legal developments, including lawsuits and enforcement assistance

Mitigate threat, remain nimble, and seize brand-new opportunities

The recent executive orders will substantially affect global companies. Legal departments and in-house counsel will need to help their organizations comprehend and adapt to modifications, ensuring compliance or litigating when suitable.

A number of the new administration’s choices will play out over the coming months, consisting of new executive orders and legal challenges. The Docket will continue to keep track of advancements. Global internal lawyers must get ready for rapid 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 former two were both delayed by a month as the administration engages in settlements. Meanwhile, China has begun its own vindictive steps on US items. He had previously announced 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 new administration also extended a grace duration for TikTok’s upcoming restriction, sending out waves throughout the technology sector, both in the United States and abroad.

Energy, environment, and health. The president also withdrew the United States from the Paris Climate Agreement and the World Health Organization, putting an early emphasis on American energy self-reliance and away from the previous administration’s international sustainability efforts.

Steps internal counsel need to consider:

– Assess the impact of prospective tariff boosts on supply chain and organization continuity.

– Assess the organization’s reliance on social media platforms, such as for marketing functions, and employment the prospective requirements to backup social media information and properties in the occasion their chosen platform stops to be available.

– Consider how advancements in the brand-new administration’s approach to environmental, sustainability and governance problems may affect the company’s ESG method.

Disclaimer: The info in any resource in this site must not be construed as legal advice or as a legal viewpoint on particular 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 definitive declaration on the subject attended to. Rather, they are intended to act as a tool offering practical assistance and referrals for the hectic internal practitioner and other readers.