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 officials to take specific actions. While they are not laws, they have the force of law and effect how existing laws are carried out or imposed.

Executive orders impact the agencies 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 might be challenged in court if deemed unconstitutional.

Executive orders might be rescinded, reversed by future presidents, or challenged in court, and enforcement concerns can alter throughout any administration.

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

Implications of the executive orders for DEI initiatives and employment in private-sector organizations

On Jan. 21, President Trump released "Ending Illegal Discrimination and Restoring Merit-Based Opportunity," which reverses various prior executive orders and memoranda, consisting of Executive Order 11246 (EO 11246) checked in 1965 by President Lyndon B. Johnson.

EO 11246 required every government agreement to include a statement that the professional will not victimize any employee or candidate for employment based on race, creed, color, or national origin.

Despite President Trump's brand-new executive order, the underlying federal anti-discrimination law remains the same for private-sector staff members.

However, the executive order signals that there might be altering enforcement top priorities in the brand-new administration. The order directs all federal firms to "fight prohibited 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 liberties office, pointing to his record of "suing corporations who use 'woke' policies to victimize their workers."

In addition to revoking EO 11246, the Jan. 21 executive order advises each agency of the federal government to identify "approximately nine potential civic compliance examinations" of economic sector entities within 120 days of the order - by May 21, 2025.

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

Organizations that may be targeted should ask:

- What is my company's threat tolerance?
- How will staff members respond to the business's actions?
- How will clients and stakeholders respond?
What internal counsel needs to think about:

Assess any federal contracts and grants

- Determine if they contain any terms or conditions associated with DEI that might contravene current laws and regulations
Review your organization's existing DEI policies to comprehend your danger

- Get ready for increased examination and prospective civil compliance investigations
Document, file, document

- Hiring and recruitment procedures
- and promotion choices
- Training materials and presence records
- Any changes to DEI policies
Implications for federal contractors

To name a few measures, the Jan. 21 Executive Order needs the heads of federal firms to consist of particular terms in every agreement or grant award:

- "A term needing the contractual counterparty or grant recipient to concur that its compliance in all respects with all appropriate Federal anti-discrimination laws is material to the government's payment decisions for purposes of area 3729( b)( 4) of title 31, United States Code"; and
- "A term needing such counterparty or recipient to license that it does not run any programs promoting DEI that break any suitable Federal anti-discrimination laws."
Section 3729 of title 31 of the United States Code is an arrangement of the US False Claims Act, a federal law that imposes civil penalties on those who make false claims to the government in order to affect the payment or invoice of money or property.

The accreditation requirement carries a potential risk of lawsuits for federal professionals under the False Claims Act. In-house legal representatives at federal contractors thus have a particular interest in ensuring their company's policies, treatments, practices, interactions and material, are examined. Assess if modifications are needed to mitigate the danger of lawsuits.

Executive orders targeting unlawful immigration

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 restricting prohibited migration and deporting prohibited immigrants. The orders require enforcement actions by federal agencies against prohibited migration.

In-house lawyers should consider reviewing their organization's employment eligibility confirmation process. They might also desire to consider whether the company is gotten ready for reacting to an I-9 audit or a worksite enforcement action (or raid) by immigration enforcement companies.

Sectors that might be especially impacted include farming, hospitality, and other industries 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 operate in hospitality, representing 7.1 percent of the workforce.

In-house counsel have an important function to play in developing and ensuring consistent application of the Form I-9 and E-Verify regulations the federal government utilizes to carry out 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.

Check out useful lists of factors to consider pertinent for in-house attorneys on the topic 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 risk that the agency could commence an I-9 audit if they felt an employer was obstructing their requirement to jail a non-citizen worker, or in some cases acquire a criminal warrant from a judge if actions support it.

Steps in-house counsel need to think about:

- Determine how lots of workers could potentially be affected
- Review your organization's employment eligibility verification process
- Ensure your company's procedure is recorded and defensible
- Implement and employment enforce clear policies
- Monitor legal advancements, including litigation and enforcement assistance
Mitigate danger, stay nimble, and take brand-new opportunities

The current executive orders will considerably impact worldwide companies. Legal departments and internal counsel will require to assist their organizations comprehend and adjust to changes, making sure compliance or litigating when appropriate.

A lot of the new administration's decisions will play out over the coming months, consisting of brand-new executive orders and legal challenges. The Docket will continue to keep track of advancements. Global internal lawyers need to prepare for fast developments related to:

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 additional tariffs on imports from China. The previous two were both delayed by a month as the administration takes part in settlements. Meanwhile, China has actually begun its own vindictive measures on US items. He had actually previously revealed his intent to enforce 25-percent intensifying tariffs on Colombia (an action that was eventually not taken).
Technology and intellectual residential or commercial property. Among the president's very first actions was to rescind the previous administration's AI executive order. The new administration likewise extended a grace period for TikTok's approaching ban, 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 focus on American energy self-reliance and away from the previous administration's global sustainability efforts.
Steps in-house counsel should consider:

- Assess the effect of potential tariff increases on supply chain and service connection.
- Assess the organization's dependence on social networks platforms, such as for marketing purposes, and the possible needs to backup social media information and assets in the occasion their preferred platform stops to be offered.
- Consider how advancements in the new administration's approach to environmental, sustainability and governance concerns may affect the organization's ESG method.
Disclaimer: The details in any resource in this site should not be construed as legal recommendations or as a legal opinion on particular facts, and must not be considered representing the views of its authors, its sponsors, and/or ACC. These resources are not planned as a conclusive statement on the subject dealt with. Rather, they are intended to work as a tool supplying practical guidance and recommendations for the busy in-house specialist and other readers.