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 ordered by the president of the United States that direct government companies and authorities to take particular actions. While they are not laws, they have the force of law and impact how existing laws are executed or enforced.

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Executive orders might be rescinded, overturned by future presidents, or challenged in court, and enforcement priorities can change during any administration.

The new administration’s actions have far-reaching effects beyond executive orders. For more on mitigating risk, international services can seize new chances by staying nimble.

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

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

EO 11246 needed every federal government agreement to include a statement that the contractor will not victimize any worker or candidate for employment based on race, creed, color, or national origin.

Despite President Trump’s new executive order, the underlying federal anti-discrimination law stays unchanged for job private-sector employees.

However, the executive order signals that there may be altering enforcement top priorities in the brand-new administration. The order directs all federal companies 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 “taking legal action against corporations who utilize ‘woke’ policies to discriminate versus their workers.”

In addition to withdrawing EO 11246, the Jan. 21 executive order advises each company of the federal government to identify “approximately 9 potential civic compliance examinations” of economic sector entities within 120 days of the order – by May 21, 2025.

The economic sector entities based on these investigations consist of openly traded corporations, large 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 risk tolerance?

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

– How will customers and stakeholders react?

What internal counsel must consider:

Assess any federal contracts and grants

– Determine if they contain any terms or conditions connected to DEI that might clash with present laws and guidelines

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

– Prepare for increased scrutiny and potential civil compliance investigations

Document, file, document

– Hiring and recruitment processes

– Performance examinations and promo decisions

– Training materials and participation records

– Any changes to DEI policies

Implications for federal contractors

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

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

– “A term requiring such counterparty or recipient to certify that it does not operate any programs promoting DEI that violate 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 property.

The accreditation requirement brings a potential threat of litigation for federal specialists under the False Claims Act. In-house lawyers at federal professionals therefore have a particular interest in ensuring their organization’s policies, procedures, practices, interactions and content, are examined. Assess if modifications are required to reduce the threat of lawsuits.

Executive orders targeting illegal migration

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

In-house legal representatives need to consider reviewing their organization’s work eligibility confirmation procedure. They may likewise want to consider whether the company is prepared for responding to an I-9 audit or a worksite enforcement action (or raid) by migration enforcement firms.

Sectors that may be especially affected consist of agriculture, hospitality, job and other markets 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 approximates that more than one million undocumented immigrants work in hospitality, representing 7.1 percent of the workforce.

In-house counsel have a crucial role to play in developing and guaranteeing consistent of the Form I-9 and E-Verify guidelines the federal government utilizes to implement and implement immigration law, job shares John W. Mazzeo, AGC, director of I-9 and E-Verify compliance for Vertical Screen, Inc., in a 2024 ACC Docket post.

Take a look at helpful checklists of factors to consider relevant for internal lawyers on the topic 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 agency could commence an I-9 audit if they felt a company was blocking their requirement to detain a non-citizen staff member, or in some cases obtain a criminal warrant from a judge if actions support it.

Steps internal counsel should consider:

– Determine how many workers could possibly be impacted

– Review your organization’s work eligibility confirmation procedure

– Ensure your company’s procedure is documented and defensible

– Implement and implement clear policies

– Monitor legal advancements, consisting of lawsuits and enforcement assistance

Mitigate threat, remain active, and take brand-new opportunities

The current executive orders will substantially impact global businesses. Legal departments and internal counsel will need to help their companies understand and adjust to modifications, ensuring compliance or litigating when suitable.

Much of the new administration’s decisions will play out over the coming months, including brand-new executive orders and legal challenges. The Docket will continue to monitor job advancements. Global in-house attorneys need to get ready for quick developments related to:

Trade and tariffs. On Feb. 1, President Trump bought 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 postponed by a month as the administration participates in negotiations. Meanwhile, China has actually started its own retaliatory measures on US items. He had previously announced his intent to impose 25-percent escalating tariffs on Colombia (an action that was eventually not taken).

Technology and intellectual residential or commercial property. 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 restriction, sending 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 worldwide sustainability efforts.

Steps internal counsel ought to think about:

– Assess the impact of prospective tariff boosts on supply chain and company connection.

– Assess the organization’s dependency on social media platforms, such as for marketing purposes, and the possible requirements to backup social media information and possessions in the occasion their chosen platform ceases to be offered.

– Consider how developments in the brand-new administration’s approach to environmental, sustainability and governance concerns may impact the organization’s ESG method.

Disclaimer: The info in any resource in this website ought to not be interpreted as legal recommendations or as a legal opinion on particular realities, and should not be considered representing the views of its authors, its sponsors, and/or ACC. These resources are not meant as a conclusive statement on the subject addressed. Rather, they are meant to work as a tool offering practical assistance and recommendations for the busy in-house practitioner and other readers.