President Trump issued a large number of Executive Orders and proclamations on his first day in office, January 20, 2025. Here is a summary of those that may affect employers:
Foreign-Born Workers
At least two of President Trump’s first-day orders may affect employers with foreign-born workers.
Proclamation Guaranteeing The States Protection Against Invasion
This proclamation relies upon the Executive’s Constitutional powers as well as those granted in the Immigration and Nationality Act to suspend entry of “aliens,” as defined in and pursuant to the Immigration and Nationality Act, across the southern border between the United States and Mexico until issuance of a further finding that “the invasion at the southern border has ceased.” The proclamation further prohibits aliens coming across the southern border from seeking asylum as a refugee until the same further finding issuance. Additionally, the proclamation requires aliens to provide sufficient medical information and reliable criminal history and background information, or else their ability to remain present in the United States may be revoked. The proclamation also suspends physical entry of aliens across the southern border, essentially “closing” the border, invoking the Executive’s Constitutional authority to control foreign affairs and protect against invasions. Finally, the proclamation directs the Secretary of Homeland Security to “repel, repatriate, and remove” any alien engaged in the “invasion across the southern border.”
A separate order, Executive Order Realigning the United States Refugee Admission Program (USRAP), also signed on January 20, 2025, suspends the Refugee Admissions Program, with limited possible exceptions. The suspension takes effect at 12:01 a.m. Eastern Standard Time on January 27, 2025.
For employers, these are two of many related first-day issuances affecting immigration and the southern border of the United States. The first proclamation, by its letter, “closes” the southern border, however enforcement mechanisms are yet to be mobilized to effectuate this and related southern border and immigration policy shifts. These changes may mean some workers may not be permitted to enter, remain, or re-enter the United States. If employers have workers facing immigration issues, employers can refer those workers to immigration attorneys or immigration assistance agencies and nonprofits, but should refrain from giving legal or immigration advice directly to workers. The Immigration Advocates Network provides a nationwide directory of immigration legal services entities and organizations.
The Future of DEI Programs
President Trump also issued orders on his first day that, while directed at the federal government in its role as an employer, may have significant influence on the use of DEI programs in the private sector and for federal contractors.
Executive Order Ending Radical and Wasteful Government DEI Programs and Preferencing
This Executive Order directly addresses diversity, equity, and inclusion (DEI) programs in use within the federal government, including the military. The order states DEI programs and “Equity Action Plans” of the various federal agencies “demonstrated immense public waste and shameful discrimination,” whereas “Americans deserve a government committed to serving every person with equal dignity and respect.” The order goes on to direct various federal government agency heads to terminate all discriminatory programs including DEI programs and plans within 60 days. This order includes a mandatory review of existing federal government employment practices, union contracts, training policies and programs, and performance reviews. The order notes that federal employee performance reviews “shall reward individual initiative, skills, performance and hard work” and not consider DEI factors.
Executive Order Reforming the Federal Hiring Process and Restoring Merit to Government Service
Related to the Executive Order Ending Radical and Wasteful Government DEI Programs and Preferencing, this order includes a policy statement that “federal hiring should not be based on impermissible factors, such as one’s commitment to illegal racial discrimination under the guise of ‘equity,’ or one’s commitment to the invented concept of ‘gender identity’ over sex.” This order requires various agency heads and executive assistants to prepare a “Federal Hiring Plan” within 120 days that is based on commitment to government efficiency, American ideals, and the rule of law, preventing hiring based on “race, sex, or religion” or those “unwilling to defend the Constitution” or faithfully serve the Executive Branch. This order also seeks to decrease the federal time-to-hire to under 80 days, improve applicant communication and hiring decision explanations, and adopting performance metrics using current technology.
For employers other than the federal government, these orders are not directly applicable but strongly impacts DEI policies and practices at the federal level and may eventually apply to federal contractor requirements. Employers may expect to see more litigation against existing DEI programs in the public and private sectors. This focus on eliminating DEI programs may eventually find its way into Equal Employment Opportunity Commission (EEOC) and National Labor Relations Board (NLRB) actions and decisions, although the leadership and membership of the governing boards of these federal employment-related agencies have not yet turned over with the new administration. Employers with existing DEI programs, policies, or practices may wish to review them to consider whether they are compliant with existing Supreme Court decisions and with the understanding that increased federal scrutiny of such programs may be coming soon. The orders may also signal a trend away from DEI in hiring practices. Notably, recent Supreme Court decisions also impact the extent to which race or other diverse characteristics can be considered in employment decisions even for private employers.
Transgender, Intersex, and LGBTQI+ Issues
An additional first-day order may have significant impact on private sector employers and federal contractors in the area of transgender, intersex, and LGBTQI+ issues.
This order states that “ideologues who deny the biological reality of sex have increasingly used legal and other socially coercive means to permit men to self-identify as women and gain access to intimate single-sex spaces and activities designed for women, from women’s domestic abuse shelters to women’s workplace showers.” Under the order, the Trump Administration will be “using clear and accurate language and policies that recognize women are biologically female, and men are biologically male,” and making the policy of the United States to recognize two sexes, male and female, decoupling “sex” from “gender identity.” The order directs all federal agencies and employees to “enforce laws governing sex-based rights, protections, opportunities, and accommodations to protect men and women as biologically distinct sexes.” Federal government-issued identifications, including passports and visas, will refer to the “sex” of the holder. The Attorney General is also directed to issue guidance regarding the “correct” application of the Supreme Court’s decision in Bostock v. Clayton County (2020) relating to sex-based distinctions. The Attorney General and the Secretary of Homeland Security are directed to exclude males from women’s prisons and detention centers, and the Secretary of Housing and Urban Development is to exclude males from women’s rape shelters. The Attorney General, Secretary of Labor, and the General Counsel and Chair of the EEOC are directed to take actions to enforce this two-sex policy. Each agency head has 120 days to provide an update on implementation of this order. The order rescinds prior Executive guidance on transgender equality including “The White House Toolkit on Transgender Equality” as well as Department of Education guidance on Title IX regulations and LGBTQI+ students and the EEOC’s April 29, 2024 “Enforcement Guidance on Harassment in the Workplace.”
For employers, this is a broadly sweeping order that not only affects the federal government as an employer but also rescinds various guidance and other documents relating to transgender, intersex, and LGBTQI+, including guidance issued by the Department of Education and the EEOC, among other federal agencies. The order extends to contractual and other requirements imposed by federal agencies on contractors and other public and private entities receiving federal funding. In the near term, employers will no longer be required to comply with certain guidance and agency-imposed requirements relating to gender identity, transgender, and intersex policies, practices, and supports. Employers should keep in mind that state and local government laws and requirements, existing contract terms, existing union contracts, existing employment policies and practices, and other requirements and practices may still require employers to comply with pre-existing sex/gender terminology and recognition. Other first-day proclamations and orders also impact gender and male-female sex designations as used within the federal government. Employers will be facing a shifting landscape on sex and gender issues for the foreseeable future and should anticipate significant changes on these issues.
Birthright Citizenship
Though not directly related to employment, some workers may be concerned about whether President Trump’s order impacting birthright citizenship could affect them personally, and employers should be aware of the parameters of the order. This order is already being challenged in court by several states, and may end up being decided by the U.S. Supreme Court.
Executive Order Protecting the Meaning and Value of American Citizenship
This Executive Order relates to “birthright citizenship” and notes that the Fourteenth Amendment to the Constitution relating to citizenship recognizes birthright citizenship for persons born in the United States who are “subject to the jurisdiction thereof.” The Trump Administration is taking the position that children born to a mother and father who were not United States citizens or lawful permanent residents of the United States at the time of the child’s birth are not automatically citizens of the United States because they do not meet the “subject to the jurisdiction” prong. Perhaps most importantly, this order applies “only to persons who are born within the United States after 30 days from the date of this order,” so that this order does not put a cloud on the legal citizenship of those previously born in the United States.
For employers, this order will have little immediate direct impact. However, the terms of this order may not be fully understood by employees or others, and employees may be concerned that this order impacts all persons previously born in the United States but to parents who were not lawful permanent residents or citizens. If rumors or employee concerns arise, employers may wish to direct employees to Section 2(b) of the order which expressly states when it takes effect, which is 30 days after the date of the order. Additionally, this order is already the subject of a lawsuit filed by multiple states, including Washington, and could be placed on hold indefinitely.
Official Place Names
This order could have an impact on employers operating in Alaska or along the Gulf coast.
Executive Order Restoring Names That Honor American Greatness
This Executive Order, among other things, re-establishes Mount McKinley as the official name of North America’s highest mountain, located in the State of Alaska, which is commonly called Denali, the Alaska Native name for the 20,310-foot tall peak in the interior of Alaska. The order also directs the Secretary of the Interior to work with Alaska Native entities and others to adopt landmark names to “honor the history and culture of the Alaskan people.” Additionally, the order re-names the Gulf of Mexico as the “Gulf of America.”
For employers, especially those operating in Alaska or in gulf states, the name change should be noted and may be required to be used in official documents involving the federal government.
Other Orders Issued
Other orders, proclamations, and memoranda issued by President Trump on the first day and potentially impacting employers include ordering a hiring freeze on all federal civilian employees, ordering a freeze on all proposed rules pending with federal agencies, directing agency heads to terminate remote work arrangements, and ordering that no federal official or employee may engage in conduct that “would unconstitutionally abridge the free speech of any American citizen.” President Trump also rescinded numerous prior Executive Orders issued by President Biden, over 70 total orders and memoranda being rescinded. Still other orders, proclamations, and memoranda related to a broad range of issues from international trade and agreements, energy policy, environmental policy, and changes to the federal bureaucracy.
The legal issues impacting this topic are and will continue to be ever-changing (Employment Law in Motion!), and since publication of this blog post, new or additional information not referenced in this blog post may be available.
This article is provided for informational purposes only—it does not constitute legal advice and does not create an attorney-client relationship between the firm and the reader. Readers should consult legal counsel before taking action relating to the subject matter of this article.
