2025 uS Executive Orders, DEI, and Employment: how In-house Lawyers can Assist the Business
Remind me, what’s an executive order?
Executive orders are instructions purchased by the president of the United States that direct government agencies and officials to take specific actions. While they are not laws, they have the force of law and effect how existing laws are executed or imposed.
Executive orders affect the firms of the executive branch and for that reason do not need the approval of Congress. They should be within the president’s constitutional authority and might be challenged in court if deemed unconstitutional.
Executive orders may be rescinded, overturned by future presidents, or challenged in court, and enforcement concerns can change throughout any administration.
The new administration’s actions have far-reaching results beyond executive orders. For more on mitigating risk, international businesses can take new opportunities by staying 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 numerous previous executive orders and memoranda, including Executive Order 11246 (EO 11246) signed in 1965 by President Lyndon B. Johnson.
EO 11246 needed every federal government contract to include a statement that the specialist will not discriminate versus any worker or applicant for work based on race, creed, color, or national origin.
Despite President Trump’s brand-new executive order, the underlying federal anti-discrimination law stays the same for private-sector staff members.
However, the executive order signals that there might be altering enforcement top priorities in the brand-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 rights office, pointing to his record of “suing corporations who utilize ‘woke’ policies to discriminate against their workers.”
In addition to withdrawing EO 11246, the Jan. 21 executive order advises each firm of the federal government to determine “as much as nine potential civic compliance investigations” of economic sector entities within 120 days of the order – by May 21, 2025.
The economic sector entities subject to these investigations include publicly traded corporations, big nonprofits – consisting of 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 threat tolerance?
– How will workers react to the company’s actions?
– How will customers and stakeholders respond?
What internal counsel should think about:
Assess any federal contracts and grants
– Determine if they include any terms or conditions associated with DEI that might contravene existing laws and regulations
Review your company’s existing DEI policies to understand your danger
– Prepare for increased scrutiny and possible civil compliance investigations
Document, file, document
– Hiring and referall.us recruitment processes
– Performance assessments and promotion choices
– Training products and participation records
– Any changes to DEI policies
Implications for federal professionals
To name a few measures, the Jan. 21 Executive Order requires the heads of federal agencies to include specific terms in every contract or grant award:
– “A term requiring the contractual counterparty or grant recipient to agree that its compliance in all respects with all suitable Federal anti-discrimination laws is product to the federal government’s payment decisions for functions of section 3729( b)( 4) of title 31, United States Code”; and
– “A term requiring such counterparty or recipient to certify that it does not run any programs promoting DEI that violate any suitable 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 penalties on those who make incorrect claims to the federal government in order to affect the payment or receipt of money or property.
The accreditation requirement brings a prospective risk of lawsuits for federal contractors under the False Claims Act. In-house legal representatives at federal contractors hence have a particular interest in guaranteeing their company’s policies, procedures, practices, interactions and content, are examined. Assess if adjustments are needed to mitigate the danger of lawsuits.
Executive orders targeting unlawful 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 restricting unlawful migration and deporting unlawful immigrants. The orders require enforcement actions by federal firms versus prohibited migration.
In-house legal representatives need to consider evaluating their organization’s employment eligibility verification procedure. They may also wish to consider whether the company is gotten ready for responding to an I-9 audit or a worksite enforcement action (or raid) by migration enforcement companies.
Sectors that may be particularly impacted include agriculture, hospitality, 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 operate in hospitality, representing 7.1 percent of the workforce.
In-house counsel have an essential function to play in establishing and ensuring consistent application of the Form I-9 and E-Verify policies the federal government utilizes to execute and implement 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.
Take a look at helpful lists of considerations appropriate for internal lawyers on the subject 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 could commence an I-9 audit if they felt a company was obstructing their need to detain a non-citizen worker, or sometimes get a criminal warrant from a judge if actions support it.
Steps internal counsel must think about:
– Determine the number of workers could potentially be affected
– Review your organization’s work eligibility confirmation process
– Ensure your organization’s process is recorded and defensible
– Implement and enforce clear policies
– Monitor legal developments, including lawsuits and enforcement guidance
Mitigate danger, stay nimble, and seize new opportunities
The current executive orders will significantly impact international companies. Legal departments and in-house counsel will need to help their companies understand and adapt to changes, ensuring compliance or litigating when proper.
Much of the brand-new administration’s decisions will play out over the coming months, consisting of new executive orders and legal difficulties. The Docket will continue to monitor advancements. Global internal attorneys need to get ready for quick advancements associated with:
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 two were both delayed by a month as the administration participates in settlements. Meanwhile, China has actually started its own retaliatory measures on US goods. He had formerly announced his intent to enforce 25-percent intensifying tariffs on Colombia (an action that was ultimately not taken).
Technology and copyright. One of the president’s very first actions was to rescind the previous administration’s AI executive order. The brand-new administration also extended a grace duration for TikTok’s impending ban, sending waves throughout the technology sector, both in the United States and abroad.
Energy, environment, and health. The president also the United States from the Paris Climate Agreement and the World Health Organization, putting an early emphasis on American energy independence and somalibidders.com far from the previous administration’s global sustainability efforts.
Steps in-house counsel should consider:
– Assess the impact of potential tariff boosts on supply chain and organization continuity.
– Assess the company’s dependency on social networks platforms, such as for marketing purposes, and the prospective needs to backup social media information and properties in case their preferred platform ceases to be available.
– Consider how advancements in the new administration’s method to ecological, sustainability and governance problems might impact the company’s ESG strategy.
Disclaimer: The info in any resource in this website need to not be interpreted as legal recommendations or as a legal viewpoint on particular facts, and should not be thought about representing the views of its authors, its sponsors, and/or ACC. These resources are not meant as a conclusive declaration on the subject resolved. Rather, they are meant to function as a tool supplying useful guidance and references for the busy internal professional and other readers.
