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

Remind me, what’s an executive order?

Executive orders are regulations ordered by the president of the United States that direct government agencies and authorities to take specific actions. While they are not laws, they have the force of law and impact how existing laws are implemented or enforced.

Executive orders affect the firms of the executive branch and for that reason do not need the approval of Congress. They must be within the president’s constitutional authority and might be challenged in court if deemed unconstitutional.

Executive orders might be rescinded, reversed by future presidents, or challenged in court, and enforcement concerns can alter throughout any administration.

The new administration’s actions have significant impacts beyond executive orders. For employment more on mitigating danger, global services can seize brand-new chances by staying nimble.

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

On Jan. 21, President Trump issued “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 needed every government agreement to consist of a statement that the professional will not discriminate against any staff member or applicant for employment based on 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 employees.

However, the executive order signals that there may be changing enforcement priorities in the new administration. The order directs all federal agencies to “fight unlawful private-sector DEI choices, requireds, 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 discriminate against their employees.”

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

The personal sector entities subject to these examinations include openly traded corporations, big nonprofits – consisting of bar associations – big foundations, employment and universities whose endowments exceed US$ 1 billion.

Organizations that may be targeted should ask:

– What is my company’s danger tolerance?

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

– How will consumers and stakeholders respond?

What in-house counsel should consider:

Assess any federal contracts and grants

– Determine if they include any terms or conditions connected to DEI that may contravene existing laws and guidelines

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

– Prepare for increased scrutiny and possible civil compliance investigations

Document, document, file

– Hiring and recruitment procedures

– Performance evaluations and promotion decisions

– Training products and participation records

– Any modifications to DEI policies

Implications for federal contractors

Among other 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 requiring the legal counterparty or grant recipient to concur that its compliance in all aspects with all suitable Federal anti-discrimination laws is material to the federal 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 operate any programs promoting DEI that breach 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 imposes civil charges on those who make incorrect claims to the federal government in order to influence the payment or invoice of cash or residential or commercial property.

The certification requirement carries a potential threat of litigation for federal specialists under the False Claims Act. In-house legal representatives at federal specialists hence have a specific interest in guaranteeing their company’s policies, procedures, practices, communications and content, are evaluated. Assess if modifications are required to mitigate the danger of litigation.

Executive orders targeting prohibited migration

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

In-house legal representatives ought to consider evaluating their company’s employment eligibility confirmation process. They might likewise want to consider whether the organization is gotten ready for reacting to an I-9 audit or a worksite enforcement action (or raid) by immigration enforcement firms.

Sectors that may be especially affected include farming, hospitality, and other industries such as construction. From 2020-2022, employment 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 operate in hospitality, representing 7.1 percent of the labor force.

In-house counsel have a crucial function to play in developing and guaranteeing constant application of the Form I-9 and E-Verify policies the federal government utilizes to execute and implement immigration law, shares John W. Mazzeo, AGC, director employment of I-9 and E-Verify compliance for Vertical Screen, Inc., in a 2024 ACC Docket article.

Have a look at useful checklists of considerations pertinent for in-house lawyers 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), there is a risk that the firm might start an I-9 audit if they felt an employer was obstructing their requirement to detain a non-citizen employee, or sometimes get a criminal warrant from a judge if actions support it.

Steps internal counsel need to consider:

– Determine the number of workers could potentially be impacted

– Review your company’s employment eligibility verification procedure

– Ensure your company’s procedure is documented and defensible

– Implement and impose clear policies

– Monitor legal developments, including litigation and enforcement guidance

Mitigate threat, stay active, and seize brand-new opportunities

The recent executive orders will substantially affect worldwide businesses. Legal departments and internal counsel will need to help their companies understand and adapt to changes, ensuring compliance or employment litigating when suitable.

A lot of the new administration’s choices will play out over the coming months, including new executive orders and legal obstacles. The Docket will continue to keep an eye on developments. Global in-house legal representatives must get ready for fast advancements associated with:

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 extra tariffs on imports from China. The previous 2 were both delayed by a month as the administration engages in settlements. Meanwhile, China has actually begun its own retaliatory measures on US products. He had formerly announced his intent to impose 25-percent intensifying tariffs on Colombia (an action that was eventually not taken).

Technology and copyright. One of the president’s first actions was to rescind the previous administration’s AI executive order. The new administration also extended a grace period for TikTok’s approaching restriction, sending out waves throughout the innovation sector, both in the United States and abroad.

Energy, climate, and health. The also withdrew the United States from the Paris Climate Agreement and the World Health Organization, putting an early emphasis on American energy independence and far from the previous administration’s international sustainability efforts.

Steps internal counsel should think about:

– Assess the impact of possible tariff boosts on supply chain and organization connection.

– Assess the organization’s reliance on social networks platforms, such as for marketing purposes, and the possible needs to backup social media data and assets in case their chosen platform ceases to be readily available.

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

Disclaimer: The information in any resource in this website ought to not be interpreted as legal guidance or as a legal opinion on specific facts, 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 statement on the subject dealt with. Rather, they are planned to work as a tool offering practical assistance and recommendations for the busy in-house practitioner and other readers.