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2025 uS Executive Orders, DEI, and Employment: how In-house Lawyers can Assist Business
Remind me, what’s an order?
Executive orders are directives ordered by the president of the United States that direct federal government companies and authorities to take particular actions. While they are not laws, they have the force of law and effect how existing laws are carried out or imposed.
Executive orders affect the companies of the executive branch and for that reason do not require 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Executive orders may be rescinded, reversed by future presidents, or challenged in court, and enforcement concerns can change during any administration.
The brand-new administration’s actions have far-reaching results beyond executive orders. For more on mitigating threat, worldwide services can seize brand-new opportunities by remaining nimble.
Implications of the executive orders for DEI efforts and employment in private-sector companies
On Jan. 21, President Trump provided “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” which reverses different previous executive orders and memoranda, including Executive Order 11246 (EO 11246) checked in 1965 by President Lyndon B. Johnson.
EO 11246 required every government contract to include a declaration that the professional will not victimize any worker or applicant for work based upon race, creed, color, or nationwide origin.
Despite President Trump’s new executive order, the underlying federal anti-discrimination law remains the same for private-sector staff members.
However, employment the executive order signals that there might be changing enforcement top priorities in the 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, pointing to his record of “taking legal action against corporations who utilize ‘woke’ policies to discriminate against their workers.”
In addition to withdrawing EO 11246, the Jan. 21 executive order instructs each company of the federal government to determine “up to nine prospective civic compliance investigations” of personal sector entities within 120 days of the order – by May 21, 2025.
The personal sector entities based on these examinations include openly traded corporations, big nonprofits – consisting of bar associations – big foundations, and universities whose endowments surpass US$ 1 billion.
Organizations that may be targeted should ask:
– What is my organization’s threat tolerance?
– How will staff members react to the business’s actions?
– How will clients and stakeholders react?
What in-house counsel should believe about:
Assess any federal agreements and grants
– Determine if they contain any terms or conditions connected to DEI that may contravene current laws and regulations
Review your organization’s existing DEI policies to understand your risk
– Prepare for increased examination and prospective civil compliance investigations
Document, file, document
– Hiring and recruitment processes
– Performance examinations and promotion choices
– Training materials and presence records
– Any changes to DEI policies
Implications for federal contractors
To name a few steps, the Jan. 21 Executive Order requires the heads of federal companies to consist of particular 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 applicable 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 certify that it does not run any programs promoting DEI that breach 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 incorrect claims to the government in order to affect the payment or receipt of cash or residential or commercial property.
The accreditation requirement brings a potential risk of litigation for federal contractors under the False Claims Act. In-house attorneys at federal professionals therefore have a particular interest in ensuring their company’s policies, procedures, practices, interactions and content, are reviewed. Assess if changes are needed to reduce the risk of litigation.
Executive orders targeting illegal migration
President Trump’s preliminary flurry of executive orders consisted of numerous – such as the Jan. 20 executive order “Protecting the American People Against Invasion” – focused on limiting prohibited immigration and deporting illegal immigrants. The orders call for enforcement actions by federal firms versus illegal immigration.
In-house lawyers should think about evaluating their organization’s work eligibility verification process. They might also desire to think about whether the company is prepared for reacting to an I-9 audit or a worksite enforcement action (or raid) by immigration enforcement firms.
Sectors that might be particularly affected include agriculture, hospitality, and other markets such as building. From 2020-2022, 42 percent of crop farmworkers held no work authorization, 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 labor force.
In-house counsel have an important role to play in establishing and guaranteeing consistent application of the Form I-9 and E-Verify regulations the federal government uses to execute and implement immigration 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 useful lists of considerations relevant 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 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 staff member, or in many cases get a criminal warrant from a judge if actions support it.
Steps internal counsel should think about:
– Determine the number of staff members might possibly be impacted
– Review your organization’s employment eligibility verification process
– Ensure your organization’s procedure is recorded and defensible
– Implement and implement clear policies
– Monitor legal developments, including litigation and enforcement guidance
Mitigate risk, stay nimble, and take brand-new opportunities
The recent executive orders will significantly affect international businesses. Legal departments and internal counsel will require to help their companies understand and adapt to modifications, making sure compliance or litigating when suitable.
Many of the new administration’s choices will play out over the coming months, consisting of brand-new executive orders and legal difficulties. The Docket will continue to monitor advancements. Global in-house attorneys should prepare 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 extra tariffs on imports from China. The former two were both postponed by a month as the administration engages in negotiations. Meanwhile, China has actually begun its own retaliatory measures on US items. He had actually formerly announced his intent to enforce 25-percent escalating tariffs on Colombia (an action that was eventually not taken).
Technology and intellectual home. Among the president’s very first actions was to rescind the previous administration’s AI executive order. The brand-new administration also extended a grace period for TikTok’s impending ban, sending waves throughout the technology sector, both in the United States and abroad.
Energy, environment, 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 in-house counsel ought to consider:
– Assess the impact of possible tariff increases on supply chain and company continuity.
– Assess the company’s reliance on social networks platforms, such as for marketing purposes, and the potential requirements to backup social networks data and possessions in case their chosen platform ceases to be offered.
– Consider how advancements in the new administration’s approach to environmental, sustainability and governance issues may impact the organization’s ESG strategy.
Disclaimer: The information in any resource in this website should not be construed as legal guidance or as a legal opinion on specific truths, and employment need to not be thought about representing the views of its authors, its sponsors, and/or ACC. These resources are not planned as a definitive statement on the subject dealt with. Rather, they are meant to work as a tool offering useful guidance and employment referrals for the busy internal professional and other readers.