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 purchased by the president of the United States that direct government agencies and officials to take particular actions. While they are not laws, they have the force of law and impact how existing laws are executed or implemented.

Executive orders affect the companies of the executive branch and therefore do not need the approval of Congress. They should be within the president’s constitutional authority and may be challenged in court if considered unconstitutional.

Executive orders may be rescinded, reversed by future presidents, or challenged in court, and enforcement top priorities can alter during any administration.

The new have significant effects beyond executive orders. For more on mitigating risk, global companies can take brand-new chances by remaining active.

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

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

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

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

However, the executive order signals that there may be changing enforcement priorities in the new administration. The order directs all federal companies to « combat prohibited 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 office, pointing to his record of « taking legal action against corporations who utilize ‘woke’ policies to discriminate against their employees. »

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

The economic sector entities subject to these examinations include publicly traded corporations, big nonprofits – including bar associations – large 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 employees react to the company’s actions?

– How will consumers and stakeholders respond?

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 might clash with present laws and regulations

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

– Get ready for increased scrutiny and possible civil compliance investigations

Document, file, document

– Hiring and recruitment processes

– Performance assessments and promo choices

– Training products and presence records

– Any modifications to DEI policies

Implications for federal contractors

Among other measures, 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 legal counterparty or grant recipient to agree that its compliance in all aspects with all suitable Federal anti-discrimination laws is material to the government’s payment choices for purposes of section 3729( b)( 4) of title 31, United States Code »; and

– « A term requiring such counterparty or recipient to accredit that it does not operate any programs promoting DEI that violate any relevant 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 imposes civil penalties on those who make incorrect claims to the federal government in order to affect the payment or invoice of cash or property.

The certification requirement brings a potential risk of lawsuits for federal professionals under the False Claims Act. In-house legal representatives at federal specialists thus have a particular interest in guaranteeing their company’s policies, procedures, practices, communications and content, are examined. Assess if adjustments are required to alleviate 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 limiting prohibited migration and deporting unlawful immigrants. The orders require enforcement actions by federal agencies versus illegal immigration.

In-house attorneys should think about reviewing their company’s employment eligibility confirmation procedure. They may also want 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 construction. From 2020-2022, 42 percent of crop farmworkers held no work permission, 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 an essential role to play in developing and guaranteeing constant application of the Form I-9 and E-Verify regulations the federal government uses to implement and enforce migration law, shares John W. Mazzeo, AGC, referall.us director of I-9 and E-Verify compliance for Vertical Screen, Inc., in a 2024 ACC Docket short article.

Check out informative lists of considerations appropriate for internal legal representatives on the subject of I-9 audits and worksite enforcement actions.

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

Steps in-house counsel should think about:

– Determine how lots of staff members could possibly be affected

– Review your organization’s work eligibility confirmation process

– Ensure your company’s procedure is documented and defensible

– Implement and impose clear policies

– Monitor legal advancements, consisting of lawsuits and enforcement assistance

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

The current executive orders will considerably affect worldwide services. Legal departments and in-house counsel will require to help their organizations comprehend and adjust to modifications, ensuring compliance or litigating when appropriate.

Many of the brand-new administration’s choices will play out over the coming months, consisting of brand-new executive orders and legal challenges. The Docket will continue to keep an eye on advancements. Global in-house legal representatives need to prepare for rapid developments 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 two were both delayed by a month as the administration participates in negotiations. Meanwhile, China has started its own vindictive steps on US products. He had actually formerly announced his intent to enforce 25-percent escalating tariffs on Colombia (an action that was ultimately 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 also extended a grace period 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 emphasis on American energy self-reliance and far from the previous administration’s global sustainability efforts.

Steps internal counsel must consider:

– Assess the effect of potential tariff boosts on supply chain and service connection.

– Assess the company’s dependence on social networks platforms, such as for marketing functions, and the possible requirements to backup social networks data and possessions in the event their preferred platform ceases to be available.

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

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