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

Remind me, what’s an executive order?

Executive orders are instructions ordered by the president of the United States that direct government agencies and authorities to take . 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 therefore 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Executive orders might be rescinded, overturned by future presidents, or challenged in court, and enforcement top priorities can change throughout any administration.

The new administration’s actions have far-reaching effects beyond executive orders. For more on mitigating threat, global companies 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, employment President Trump released «Ending Illegal Discrimination and Restoring Merit-Based Opportunity,» which reverses numerous prior executive orders and memoranda, including Executive Order 11246 (EO 11246) checked in 1965 by President Lyndon B. Johnson.

EO 11246 required every federal government agreement to include a declaration that the specialist will not victimize any worker 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 remains unchanged for private-sector employees.

However, the executive order signals that there may be changing enforcement concerns in the brand-new administration. The order directs all federal agencies to «combat 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 office, indicating his record of «taking legal action against corporations who use ‘woke’ policies to victimize their workers.»

In addition to withdrawing EO 11246, the Jan. 21 executive order instructs each agency of the federal government to recognize «approximately 9 potential civic compliance investigations» of economic sector entities within 120 days of the order – by May 21, 2025.

The economic sector entities based on these investigations include publicly traded corporations, big nonprofits – consisting of bar associations – large structures, 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 respond to the business’s actions?

– How will clients and stakeholders react?

What in-house counsel needs to consider:

Assess any federal agreements and grants

– Determine if they contain any terms or conditions associated with DEI that may contravene existing laws and guidelines

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

– Get ready for increased scrutiny and potential civil compliance investigations

Document, file, file

– Hiring and recruitment procedures

– Performance examinations and promotion decisions

– Training products and employment presence records

– Any modifications to DEI policies

Implications for federal contractors

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

– «A term requiring the contractual counterparty or grant recipient to agree that its compliance in all aspects with all applicable Federal anti-discrimination laws is product to the federal government’s payment choices for purposes of area 3729( b)( 4) of title 31, United States Code»; and

– «A term needing such counterparty or recipient to certify that it does not run any programs promoting DEI that break 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 imposes civil penalties on those who make incorrect claims to the federal government in order to affect the payment or receipt of money or residential or commercial property.

The certification requirement carries a possible risk of lawsuits for federal contractors under the False Claims Act. In-house attorneys at federal specialists therefore have a particular interest in ensuring their organization’s policies, procedures, practices, communications and employment content, are evaluated. Assess if modifications are required to mitigate the threat of litigation.

Executive orders targeting prohibited migration

President Trump’s preliminary flurry of executive orders included numerous – such as the Jan. 20 executive order «Protecting the American People Against Invasion» – targeted at limiting illegal immigration and deporting prohibited immigrants. The orders call for enforcement actions by federal companies against unlawful immigration.

In-house legal representatives need to consider examining their organization’s work eligibility confirmation process. 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 agencies.

Sectors that might be especially impacted include farming, hospitality, and other industries such as construction. 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 work in hospitality, representing 7.1 percent of the workforce.

In-house counsel have a crucial role to play in developing and making sure consistent application of the Form I-9 and E-Verify policies the federal government utilizes to carry out and enforce migration law, shares John W. Mazzeo, AGC, director of I-9 and E-Verify compliance for Vertical Screen, Inc., in a 2024 ACC Docket article.

Have a look at informative lists of factors to consider relevant for internal attorneys on the topic of I-9 audits and worksite enforcement actions.

If a company does not comply with a civil administrative warrant provided by US Immigration and Customs Enforcement (ICE), there is a danger that the agency might begin an I-9 audit if they felt a company was blocking their requirement to detain a non-citizen employee, or in some cases obtain a criminal warrant from a judge if actions support it.

Steps in-house counsel should consider:

– Determine the number of employees could possibly be affected

– Review your company’s work eligibility confirmation procedure

– Ensure your organization’s process is recorded and employment defensible

– Implement and implement clear policies

– Monitor legal advancements, consisting of litigation and enforcement guidance

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

The current executive orders will substantially affect international services. Legal departments and in-house counsel will need to assist their organizations comprehend and adjust to modifications, guaranteeing compliance or litigating when suitable.

Many 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 track of advancements. Global in-house legal representatives need to get ready for fast developments connected to:

Trade and tariffs. On Feb. 1, employment 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 two were both delayed by a month as the administration engages in negotiations. Meanwhile, China has started its own retaliatory procedures on US items. He had formerly announced his intent to enforce 25-percent escalating tariffs on Colombia (an action that was ultimately not taken).

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

Energy, climate, 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 self-reliance and far from the previous administration’s international sustainability efforts.

Steps internal counsel ought to think about:

– Assess the effect of possible tariff increases on supply chain and service connection.

– Assess the company’s dependency on social networks platforms, such as for marketing functions, and the possible needs to backup social media data and possessions in case their chosen platform ceases to be readily available.

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

Disclaimer: The information in any resource in this site need to not be construed as legal advice or as a legal viewpoint on specific facts, and must 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 attended to. Rather, they are meant to serve as a tool supplying practical guidance and references for the hectic in-house specialist and other readers.