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

Remind me, what’s an executive order?

Executive orders are directives ordered by the president of the United States that direct federal government firms and officials to take specific actions. While they are not laws, they have the force of law and impact how existing laws are executed or implemented.

Executive orders impact the companies 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 may be challenged in court if deemed unconstitutional.

Executive orders may be rescinded, overturned by future presidents, or challenged in court, and enforcement top priorities can change throughout any administration.

The new administration’s actions have far-reaching effects beyond executive orders. For more on mitigating danger, global businesses can seize new opportunities by staying nimble.

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

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

EO 11246 required every government contract to consist of a declaration that the professional will not victimize any employee or candidate for work based upon race, creed, color, or national origin.

Despite President Trump’s brand-new executive order, the underlying federal anti-discrimination law remains unchanged for private-sector workers.

However, the executive order signals that there might be altering enforcement top priorities in the new administration. The order directs all federal companies to “combat unlawful 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 withdrawing EO 11246, the Jan. 21 executive order instructs each agency of the federal government to recognize “as much as nine prospective civic compliance investigations” of economic sector entities within 120 days of the order – by May 21, 2025.

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

Organizations that may be targeted should ask:

– What is my company’s risk tolerance?

– How will workers react to the company’s actions?

– How will clients and stakeholders react?

What internal counsel should believe about:

Assess any federal contracts and employment grants

– Determine if they consist of 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 risk

– Prepare for increased analysis and prospective civil compliance investigations

Document, file, file

– Hiring and recruitment processes

– Performance evaluations and promo choices

– Training materials and participation records

– Any modifications to DEI policies

Implications for federal specialists

Among other measures, employment the Jan. 21 Executive Order requires the heads of federal agencies to include particular terms in every contract or grant award:

– “A term requiring the legal counterparty or grant recipient to agree that its compliance in all respects with all applicable Federal anti-discrimination laws is product to the government’s payment decisions 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 run any programs promoting DEI that violate any applicable 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 enforces civil charges on those who make incorrect claims to the government in order to affect the payment or invoice of cash or home.

The accreditation requirement carries a prospective threat of litigation for federal contractors under the False Claims Act. In-house lawyers at federal specialists therefore have a specific interest in ensuring their organization’s policies, procedures, practices, communications and content, are examined. Assess if adjustments are needed to alleviate the danger of litigation.

Executive orders targeting prohibited immigration

President Trump’s initial flurry of executive orders included many – such as the Jan. 20 executive order “Protecting the American People Against Invasion” – targeted at limiting illegal immigration and deporting unlawful immigrants. The orders require enforcement actions by federal companies versus illegal immigration.

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

Sectors that might be particularly affected consist of agriculture, hospitality, and other industries such as building. 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 operate in hospitality, employment representing 7.1 percent of the workforce.

In-house counsel have a crucial function to play in developing and guaranteeing consistent application of the Form I-9 and E-Verify regulations the federal government uses to carry out 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 considerations appropriate for employment in-house attorneys on the topic 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 danger that the agency might commence an I-9 audit if they felt an employer was blocking their requirement to detain a non-citizen worker, employment or in some cases acquire a criminal warrant from a judge if actions support it.

Steps internal counsel ought to consider:

– Determine how lots of staff members could possibly be impacted

– Review your organization’s employment eligibility verification procedure

– Ensure your organization’s procedure is documented and defensible

– Implement and enforce clear policies

– Monitor employment legal advancements, including litigation and enforcement assistance

Mitigate risk, stay nimble, and take brand-new chances

The recent executive orders will considerably affect worldwide organizations. Legal departments and in-house counsel will to assist their companies understand and adjust to changes, making sure compliance or litigating when proper.

Many of the new administration’s decisions will play out over the coming months, including new executive orders and legal obstacles. The Docket will continue to keep track of advancements. Global internal lawyers must get ready for rapid advancements related 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 takes part in negotiations. Meanwhile, China has actually begun its own retaliatory steps on US products. He had previously announced his intent to enforce 25-percent escalating tariffs on Colombia (an action that was eventually not taken).

Technology and intellectual property. Among 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 out waves throughout the innovation 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 focus on American energy self-reliance and away from the previous administration’s worldwide sustainability efforts.

Steps internal counsel need to consider:

– Assess the effect of potential tariff increases on supply chain and company connection.

– Assess the company’s dependency on social media platforms, such as for marketing functions, and the possible requirements to backup social media data and assets in the occasion their preferred platform stops to be readily available.

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

Disclaimer: The details in any resource in this website should not be interpreted as legal recommendations or as a legal viewpoint on specific realities, and ought to not be thought about representing the views of its authors, its sponsors, and/or ACC. These resources are not intended as a conclusive statement on the subject addressed. Rather, they are planned to act as a tool supplying practical guidance and recommendations for the busy in-house practitioner and other readers.