Remind me, what's an executive order?

Executive orders are regulations ordered by the president of the United States that direct federal government agencies and authorities to take specific actions. While they are not laws, they have the force of law and impact how existing laws are executed or enforced.

Executive orders impact the firms of the executive branch and for that reason do not require the approval of Congress. They should be within the president's constitutional authority and may be challenged in court if considered unconstitutional.

Executive orders might be rescinded, overturned by future presidents, or challenged in court, and enforcement top priorities can alter during any administration.

The brand-new administration's actions have far-reaching impacts beyond executive orders. For more on mitigating risk, worldwide services can take new opportunities by remaining nimble.

Implications of the executive orders for DEI efforts and work in private-sector organizations

On Jan. 21, President Trump issued "Ending Illegal Discrimination and Restoring Merit-Based Opportunity," which reverses various prior employment 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 contractor will not discriminate against any staff member or applicant for work based upon 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 employees.

However, the executive order signals that there might be altering enforcement concerns in the new administration. The order directs all federal companies to "combat unlawful private-sector DEI choices, requireds, policies, programs, and activities."

In December 2024, President-elect Trump tapped Harmeet K. Dhillon to lead the Justice Department's civil rights workplace, indicating his record of "suing corporations who use '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 identify "approximately 9 potential civic compliance investigations" of private sector entities within 120 days of the order - by May 21, 2025.

The economic sector entities based on these investigations consist of publicly traded corporations, large nonprofits - including bar associations - big foundations, and universities whose endowments go beyond US$ 1 billion.

Organizations that may be targeted should ask:

- What is my organization's threat tolerance?
- How will employees react to the company's actions?
- How will consumers and stakeholders respond?
What internal counsel needs to think about:

Assess any federal contracts and employment grants

- Determine if they consist of any terms or conditions connected to DEI that may contrast with current laws and policies
Review your organization's existing DEI policies to comprehend your threat

- Get ready for increased analysis and possible civil compliance investigations
Document, file, document

and recruitment procedures
- Performance assessments and promo choices
- Training products and presence records
- Any modifications to DEI policies
Implications for federal professionals

Among other procedures, the Jan. 21 Executive Order needs the heads of federal agencies 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 aspects with all relevant Federal anti-discrimination laws is product to the federal government's payment decisions for functions of area 3729( b)( 4) of title 31, United States Code"; and
- "A term needing such counterparty or recipient to accredit 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 a provision of the US False Claims Act, a federal law that enforces civil penalties on those who make incorrect claims to the government in order to influence the payment or invoice of money or home.

The accreditation requirement brings a prospective danger of lawsuits for federal specialists under the False Claims Act. In-house lawyers at federal contractors hence have a particular interest in ensuring their organization's policies, treatments, practices, interactions and content, are examined. Assess if adjustments are needed to mitigate the risk of litigation.

Executive orders targeting illegal immigration

President Trump's initial flurry of executive orders included lots of - such as the Jan. 20 executive order "Protecting the American People Against Invasion" - intended at restricting prohibited immigration and deporting unlawful immigrants. The orders call for enforcement actions by federal companies against illegal immigration.

In-house attorneys must think about reviewing their organization's work eligibility confirmation process. They may likewise desire to think about whether the company is gotten ready for responding to an I-9 audit or a worksite enforcement action (or raid) by immigration enforcement companies.

Sectors that may be particularly impacted consist of farming, hospitality, and other industries 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 work in hospitality, representing 7.1 percent of the labor force.

In-house counsel have an essential role to play in establishing and ensuring constant application of the Form I-9 and E-Verify regulations the federal government utilizes to implement and impose immigration law, shares John W. Mazzeo, AGC, director of I-9 and E-Verify compliance for Vertical Screen, Inc., in a 2024 ACC Docket short article.

Take a look at useful lists of considerations relevant for internal legal representatives on the subject of I-9 audits and worksite enforcement actions.

If an employer does not cooperate with a civil administrative warrant provided by US Immigration and Customs Enforcement (ICE), there is a threat that the agency might start an I-9 audit if they felt an employer was obstructing their need to detain a non-citizen staff member, or in many cases acquire a criminal warrant from a judge if actions support it.

Steps in-house counsel need to consider:

- Determine the number of employees might possibly be impacted
- Review your company's employment eligibility confirmation procedure
- Ensure your company's procedure is recorded and defensible
- Implement and impose clear policies
- Monitor legal developments, consisting of litigation and enforcement assistance
Mitigate risk, employment remain active, employment and seize new opportunities

The recent executive orders will substantially affect global companies. Legal departments and in-house counsel will require to assist their organizations comprehend and adapt to changes, guaranteeing compliance or litigating when suitable.

A lot of the brand-new administration's decisions will play out over the coming months, including new executive orders and legal obstacles. The Docket will continue to monitor developments. Global internal attorneys must get ready for rapid advancements related to:

Trade and tariffs. On Feb. 1, President Trump purchased the imposition of a 25-percent tariff on imports from Canada and Mexico, and 10-percent extra tariffs on imports from China. The former 2 were both postponed by a month as the administration participates in settlements. Meanwhile, China has actually begun its own vindictive steps on US items. He had actually formerly announced his intent to enforce 25-percent escalating tariffs on Colombia (an action that was ultimately not taken).
Technology and copyright. One of the president's 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 restriction, sending out waves throughout the technology sector, both in the United States and abroad.
Energy, climate, and health. The president also withdrew the United States from the Paris Climate Agreement and the World Health Organization, putting an early emphasis on American energy independence and away from the previous administration's global sustainability efforts.
Steps internal counsel must consider:

- Assess the effect of prospective tariff increases on supply chain and organization continuity.
- Assess the organization's dependency on social networks platforms, such as for marketing functions, and the possible requirements to backup social networks data and possessions in case their preferred platform ceases to be readily available.
- Consider how advancements in the brand-new administration's approach to environmental, sustainability and governance problems may affect the company's ESG strategy.
Disclaimer: The information in any resource in this site ought to not be interpreted as legal suggestions or as a legal viewpoint on specific realities, and must not be considered representing the views of its authors, its sponsors, and/or employment ACC. These resources are not meant as a definitive declaration on the subject resolved. Rather, they are planned to serve as a tool supplying useful guidance and references for the hectic internal professional and other readers.