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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 instructions bought by the president of the United States that direct federal government agencies and authorities to take particular actions. While they are not laws, they have the force of law and impact how existing laws are carried out or enforced.

Executive orders impact the agencies of the executive branch and for that reason do not need the approval of Congress. They need to 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Executive orders might be rescinded, overturned by future presidents, or challenged in court, and enforcement priorities can change throughout any administration.

The new administration’s actions have far-reaching impacts beyond executive orders. For more on mitigating threat, international services can take new opportunities by staying active.

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

On Jan. 21, President Trump provided “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” which reverses different 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 statement that the specialist will not victimize any employee or applicant for work based on race, creed, color, or nationwide origin.

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

However, the executive order signals that there might be altering enforcement priorities in the new administration. The order directs all federal agencies to “fight prohibited 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 liberties workplace, indicating his record of “taking legal action against corporations who utilize ‘woke’ policies to victimize their employees.”

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

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

Organizations that may be targeted should ask:

– What is my company’s risk tolerance?

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

– How will clients and stakeholders react?

What in-house counsel needs to believe about:

Assess any federal contracts and grants

– Determine if they contain any terms or conditions related to DEI that may contravene current laws and policies

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

– Get ready for increased analysis and prospective civil compliance investigations

Document, file, document

– Hiring and recruitment processes

– Performance evaluations and promo choices

– Training products and participation records

– Any changes to DEI policies

Implications for federal specialists

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

– “A term needing the legal counterparty or grant recipient to concur that its compliance in all respects with all suitable Federal anti-discrimination laws is material to the federal 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 license that it does not operate any programs promoting DEI that violate any applicable 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 charges on those who make false claims to the federal government in order to affect the payment or receipt of cash or home.

The accreditation requirement carries a possible risk of litigation for federal specialists under the False Claims Act. In-house legal representatives at federal professionals hence have a particular interest in ensuring their organization’s policies, employment treatments, practices, communications and content, are reviewed. Assess if modifications are required to reduce the risk of lawsuits.

Executive orders targeting unlawful 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 prohibited migration and deporting unlawful immigrants. The orders require enforcement actions by federal companies versus unlawful migration.

In-house legal representatives ought to think about reviewing their company’s employment eligibility verification procedure. 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 migration enforcement firms.

Sectors that may be especially impacted consist of farming, hospitality, and other industries 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 establishing and employment 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 considerations appropriate for in-house 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 threat that the agency might begin an I-9 audit if they felt an employer was obstructing their need to jail a non-citizen worker, or sometimes get a criminal warrant from a judge if actions support it.

Steps in-house counsel need to consider:

– Determine the number of employees could possibly be impacted

– Review your organization’s employment eligibility verification process

– Ensure your company’s procedure is recorded and defensible

– Implement and clear policies

– Monitor legal advancements, including litigation and enforcement assistance

Mitigate danger, stay nimble, and seize brand-new opportunities

The current executive orders will substantially affect global businesses. Legal departments and in-house counsel will require to assist their organizations understand and adjust to changes, ensuring compliance or litigating when proper.

Much 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 in-house lawyers need to get ready for quick advancements associated with:

Trade and tariffs. On Feb. 1, President Trump ordered the imposition of a 25-percent tariff on imports from Canada and Mexico, and 10-percent extra tariffs on imports from China. The former two were both postponed by a month as the administration takes part in negotiations. Meanwhile, China has started its own retaliatory procedures on US items. He had previously revealed his intent to impose 25-percent escalating tariffs on Colombia (an action that was ultimately not taken).

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

Energy, climate, 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 ought to think about:

– Assess the impact of prospective tariff increases on supply chain and organization connection.

– Assess the organization’s dependence on social media platforms, such as for marketing purposes, and the prospective requirements to backup social networks data and properties in the event their preferred platform ceases to be available.

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

Disclaimer: The details in any resource in this website must not be interpreted as legal suggestions or as a legal viewpoint on particular truths, and need to not be considered representing the views of its authors, its sponsors, and/or ACC. These resources are not planned as a conclusive declaration on the subject dealt with. Rather, they are meant to act as a tool providing useful assistance and referrals for the hectic internal professional and other readers.