Recent Executive Orders – What Might They Mean for Your Company?
The new administration has been active with the signing of many Executive Orders. We wanted to share some information and guidance on three areas you may have questions about. Things are changing quickly so check back with us frequently for updates.
Affirmative Action Based on Race and Gender
Executive Order 11246 was signed by President Johnson on September 24, 1965. Since then, certain government contractors were required to establish an Affirmative Action Plan, based on race and gender, establishing good faith efforts to help promote equal employment opportunities for underrepresented groups. On January 21, 2025, President Trump revoked this Order by signing Executive Order 14173. Government contractors previously required to establish Affirmative Action Plans will no longer be required to do so, as of April 21, 2025 (90 days from the date the Order was revoked). The Order will now require the contractors to “certify that it does not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws.”
It’s important to note:
- This does NOT impact Title VII. Title VII prohibits discrimination on the basis of race, color, religion, sex, and national origin in workplaces, including federal contractors.
- This does NOT impact the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) and Section 503 of the Rehabilitation Act. Those Acts require certain federal contractors to establish an Affirmative Action Plan, based on Veteran and disabilities.
- DEI Programs, for private employers, are not prohibited by this Executive Order, so long as Federal anti-discrimination laws are not violated. (More on this below)
DEI Programs
Two Executive Orders mention, or may have impact on, Diversity, Equity, and Inclusion (DEI) Programs. Executive Order 14151 applies to federal agencies and requires the closure of DEI departments and the end of DEI programming. Executive Order 14173, in addition to the elimination of Affirmative Action discussed above, aims to enforce “Federal civil-rights laws and taking other appropriate measures to encourage the private sector to end illegal discrimination and preferences, including DEI.”
On February 5, 2025, the US Attorney General issued a memo regarding the Executive Order 14173, clarifying “This memorandum is intended to encompass programs, initiatives, or policies that discriminate, exclude, or divide individuals based on race or sex. It does not prohibit educational, cultural, or historical observances-such as Black History Month, International Holocaust Remembrance Day, or similar events-that celebrate diversity, recognize historical contributions, and promote awareness without engaging in exclusion or discrimination.” We also expect additional guidance from the Attorney General in the next 120 days.
What does this mean for DEI? In summary, if you have a DEI program now that is lawful, inclusive, does not exclude or divide based on race or sex, and does not violate Federal civil rights laws, it should be fine. Of course, be sure to work with a qualified employment attorney to help ensure your program is not problematic, and reach out to HRT Northwest to review your employee handbook and to help ensure your managers are properly trained on your policies and practices. Davis Wright Tremaine’s recent article also provides wise and practical advice in this area: the Executive Orders “do not have the power to change civil rights law (e.g., Title VII), to make nondiscriminatory DEI programming illegal. If your organization has a DEI program, it should already be operating in compliance with Title VII, meaning it does not use race or any other protected class as a consideration in employment decisions. In other words, if your DEI program complied with the law last week, it still complies with the law this week. The governing standard has not changed.”
Homeland Security, U.S. Immigration and Customs Enforcement (ICE), and Form I-9
Since November 6, 1986, when a new employee is hired, employers are obligated to complete the Form I-9, confirming the individual’s identity and eligibility to work in the United States. This requirement has not changed. Employers are encouraged to conduct internal I-9 audits to ensure forms are complete and accurate, in the event of an audit by Homeland Security Investigations (HSI) or ICE. If you are audited, you will possibly need to produce your I-9s within three days. Also, an important reminder: Be sure you maintain a separate file or folder only for I-9s (do not keep them in the employee files); contact us if you need guidance.
Some employers will want to work with legal counsel to create a plan in the event of a visit from ICE or HSI. Depending on your workplace, it can be a good idea to train front-line staff, such as receptionists, how to respond and who to contact internally if ICE were to arrive. The Company should designate a senior manager to be the party responsible for interacting with the officer. The officers would generally be able to enter only for the purposes listed on the signed warrant; the designated manager will want to examine the warrant and then monitor the officers (but don’t get in the way). They should be sure to take note of what occurs, such as whether any records are taken, and reach out to legal counsel and/or a public relations expert as needed.
As always, if you have any questions about this information or any HR-related area, please contact us. We’re here!
HRT Northwest: Your Northwest HR Team
Seattle: (253) 642-7372 info@hrtnorthwest.com
This Update is not a full overview of all recent or upcoming legal changes. HRT Northwest is staffed by professionals in the field of Human Resources and business management. We are glad to help with your HR needs; however, we do not offer legal advice and our services are not a substitute for the help of a qualified attorney.