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This feature is a part of the “The Dotted Line” series, which has a thorough look at the complex legal landscape of the construction industry. To see the whole series, Click here
There is a saying about successful movies in Hollywood – no one knows anything.
While Tinseltown is far from construction, the building’s lawyers are providing this underlying feeling when addressing diversity, equity and inclusion.
“I have to be honest with you,” said Jason Tremblay, employment and labor internships in the Office of the Office of the Chicago Saul Ewing office, “anyone who says 100% of what they are talking about in this area, you don’t know what will happen or how it will evolve.”
Jason Tremblay
Courtesy of Saul Ewing
This is especially true when you sail in Dei in 2025, given the position of the administration of President Donald Trump to take root what is referred to as “illegal” in both federal and private sector.
Shortly after taking office, Trump issued a series of executive orders To direct the federal agencies to stop promoting diversity while also demanding the federal contractors who certify that they do not carry out illegal programs or participate in other efforts of balance of the workforce.
These changes are especially relevant in construction, an industry that has tried proactively its image only with white guys. For example, the week of inclusion of the construction of the sector is aimed at bringing more workers to their workforce, with an emphasis on diversity. Is Set the fifth race of this October.
But lawyers say this area is now full of possible problems for builders. Federal contractors certifying that they do not make illegal programs could deal with the penalties of the law of false and hard claims, up to three times the value of the contract, if they do so, according to Andrew Turnbull, a Washington lawyer, DC, Morrison Foerster’s office, who co -presents the firm of Dei Stratgy + Defense Task Force.
Andrew Turnbull
Courtesy of Andrew Turnbull; Morrison foerster
“Each time you send a payment, there may be damage related to damage,” said Turnbull. “They have a great sledgehammer.”
And although DEI requirements have been affected by federal contracts, many still exist at the state level. This means that a contractor trying to satisfy a client can run to another.
“Some of these things will be red flag problems,” Turnbull said. “Here’s a real risk.”
In this context, lawyers recommend that companies carry out DEI audits. This level configuration process can help companies understand what policies they have in their place and where they can conflict with the new rules. They should also apply a business lens to the company.
Trent Cotney
Courtesy of Adams and Reese Llp
“The first thing you want to do is take a look at your business book,” said Trent Cotney, a partner and leader of the Tampa Adams & Reese Management Office. “It is clear that if you are a national contractor, national or do public work, federal work, there is probably additional scrutiny.”
What to look for
With the exception of veterans and people with disabilities, Trump Dei’s illegal orders are specifically aimed at affirmative action programs. This means efforts where quotas or goals are established through specific class characteristics protected for inclusion, such as gender or race.
“Programs seeking what is known as the balance of workforce,” said Cotney. “Criteria are taken, usually race or sexual preferences or any protected classes, and seeks to hire specifically to check the boxes or make sure you have more than these individuals, regardless of performance-based criteria.”
Other types of educational, cultural or historical initiatives, such as celebrating the month of black historyare likely not a problem. However, additional efforts, including the recruitment of historically black colleges and universities, if they are exclusively performed, could attract the anger of the administration.
“The more you determine that you only dedicate your contracting efforts to historically black colleges, the more you would increase your possibilities by virtue of this administration that you are implementing an illegal Dei program, not based on its,” said Tremblay.
Instead, he suggested that if, for example, companies recruit from the Howard University, which is historically black, should also publish a program at Georgetown University, which is not. In doing -S, I could provide more a legal shield.
Contract review
From the contract point of view, lawyers recommend reviewing the agreements that you already have to include the DEI language, especially those based on standard industry form contracts.
“Some premiums will flow to their substs, which have only their contracts,” said Turnbull. “They need to review them and say they look all.”
When you sign in to a state-level contract that may still contain DEI language requirements or even labor requirements, make sure you know what you sign.
“We have a lot of questions about:” I cannot ask it in the federal context, but at the state level, there is still an obligation, “Turnbull said.” There is no clear answer in this regard, but technically, if the state contract requires it, this is still a good law at the moment. At least it is about looking. “
For Cotney, contractors must try to re -put the conflicting requirements to the job owner or sponsor to ask them to be in place.
“If there is something questionable, a statement would say that the owner or who gives me this contract has determined that it complies with all the federal rules and regulations,” said Cotney. “Change the load, as far as possible, upstream.”
Decide a way forward
Once you have completed an audit, which, when performed under the direction of the legal lawyer, will be protected by the privilege of Law-Client, companies should determine a path forward from there.
“I have companies that I represent that they have welcomed this and searched any mention of any kind of affirmative action,” said Treblay. “I have others who have excavated their heels and said,” We will not. We will keep the course and keep our programs. If they come to us, we will treat it. “”
Most customers, however, have adopted a more evaluating approach, determining which programs can continue to implement while reducing the possibility of triggering an audit.
The reason why it is not only the government that looks at these programs, but also the employees do. Lawyers say that the contractors who rule out wholesale do not only risk alienating the employees they have, while triggering the possible claims of discrimination from the inside, they are at disadvantaged to bring new talent to their labor force.
“The only message I want to send is not to abandon your diversity policies only because of this illegal Dei approach,” said Cotney. “You still need to have a good policy against knowledge and foster diversity. It brings a significant amount to the table both internally and changing the general point of view. Diversity is a great thing.”
