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 ordered by the president of the United States that direct federal government companies and authorities 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 impact the firms 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 might be challenged in court if considered unconstitutional.

Executive orders may be rescinded, overturned by future presidents, or challenged in court, and enforcement top priorities can change during any administration.

The new administration’s actions have significant results beyond executive orders. For more on mitigating danger, international businesses can seize new chances by remaining active.

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

On Jan. 21, President Trump released “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” which reverses various prior executive orders and memoranda, consisting of 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 contractor will not victimize any staff member or candidate 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 staff members.

However, the executive order signals that there may be changing enforcement top priorities in the new administration. The order directs all federal firms to “fight illegal 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 workplace, indicating his record of “suing corporations who use ‘woke’ policies to victimize their employees.”

In addition to revoking EO 11246, the Jan. 21 executive order instructs each firm of the federal government to recognize “approximately 9 possible civic compliance investigations” of economic sector entities within 120 days of the order – by May 21, 2025.

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

Organizations that may be targeted should ask:

– What is my company’s threat tolerance?

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

– How will clients and stakeholders respond?

What internal counsel ought to consider:

Assess any federal contracts and grants

– Determine if they consist of any terms or conditions associated with DEI that may clash with present laws and policies

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

– Prepare for increased examination and potential civil compliance investigations

Document, file, document

– Hiring and recruitment procedures

– Performance assessments and promo choices

– Training products and attendance records

– Any changes to DEI policies

Implications for federal specialists

To name a few steps, the Jan. 21 Executive Order requires the heads of federal companies to consist of specific terms in every contract or grant award:

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

– “A term needing such counterparty or recipient to accredit that it does not operate any programs promoting DEI that breach 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 influence the payment or invoice of money or property.

The accreditation requirement brings a possible risk of lawsuits for federal contractors under the False Claims Act. In-house lawyers at federal professionals therefore have a specific interest in ensuring their company’s policies, procedures, practices, communications and content, are evaluated. Assess if modifications are required to alleviate the risk of lawsuits.

Executive orders targeting prohibited migration

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

In-house lawyers should consider evaluating their company’s work eligibility verification process. They may also wish to consider whether the organization is prepared for reacting to an I-9 audit or a worksite enforcement action (or raid) by immigration enforcement firms.

Sectors that may be particularly affected consist of agriculture, 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 approximates 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 ensuring constant application of the Form I-9 and employment E-Verify regulations the federal government utilizes to execute and impose immigration law, shares John W. Mazzeo, AGC, employment director of I-9 and E-Verify compliance for Vertical Screen, Inc., in a 2024 ACC Docket short article.

Have a look at informative checklists of factors to consider appropriate for internal lawyers on the topic of I-9 audits and worksite enforcement actions.

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

Steps internal counsel must think about:

– Determine how lots of employees could potentially be impacted

– Review your company’s work eligibility verification process

– Ensure your organization’s procedure is documented and defensible

– Implement and impose clear policies

– Monitor legal developments, consisting of lawsuits and enforcement assistance

Mitigate danger, stay nimble, and take new chances

The recent executive orders will considerably affect global businesses. Legal departments and in-house counsel will need to help their organizations comprehend and adjust to modifications, making sure compliance or litigating when appropriate.

A lot of the new administration’s decisions will play out over the coming months, consisting of new executive orders and legal difficulties. The Docket will continue to keep an eye on advancements. Global internal lawyers ought to get ready for rapid developments connected to:

Trade and tariffs. On Feb. 1, employment President Trump bought the imposition of a 25-percent tariff on imports from Canada and employment Mexico, and 10-percent additional tariffs on imports from China. The previous 2 were both delayed by a month as the administration takes part in settlements. Meanwhile, China has started its own vindictive steps on US goods. He had actually previously revealed his intent to enforce 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 brand-new administration likewise extended a grace period for TikTok’s upcoming ban, sending waves throughout the innovation sector, both in the United States and abroad.

Energy, environment, 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 independence and away from the previous administration’s global sustainability efforts.

Steps internal counsel should think about:

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

– Assess the organization’s reliance on social networks platforms, such as for marketing functions, and the possible requirements to backup social media data and possessions in case their preferred platform stops to be available.

– Consider how advancements in the new administration’s method to ecological, sustainability and governance problems might affect the company’s ESG method.

Disclaimer: The details in any resource in this website must not be interpreted as legal advice or as a legal opinion on particular realities, and need to not be thought about 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 act as a tool providing useful guidance and references for the hectic internal professional and other readers.