Remind me, what's an executive order?

Executive orders are instructions bought by the president of the United States that direct government companies and authorities to take specific actions. While they are not laws, job they have the force of law and impact how existing laws are implemented or enforced.

Executive orders impact the firms of the executive branch and therefore do not need the approval of Congress. They need to be within the president's constitutional authority and may be challenged in court if deemed unconstitutional.

Executive orders may be rescinded, overturned by future presidents, or challenged in court, and enforcement priorities can alter during any administration.

The new administration's actions have significant results beyond executive orders. For more on mitigating danger, global companies can take brand-new chances by remaining nimble.

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

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

EO 11246 needed every government agreement to consist of a declaration that the contractor will not discriminate versus any worker or applicant for work based on race, creed, color, or national origin.

Despite President Trump's new executive order, the underlying federal anti-discrimination law stays the same for private-sector workers.

However, the executive order signals that there might be changing enforcement top priorities in the brand-new administration. The order directs all federal agencies to "combat prohibited private-sector DEI choices, mandates, policies, programs, and activities."

In December 2024, President-elect Trump tapped Harmeet K. Dhillon to lead the Justice Department's civil rights office, indicating his record of "taking legal action against corporations who use 'woke' policies to victimize their employees."

In addition to withdrawing EO 11246, the Jan. 21 executive order advises each agency of the federal government to recognize "as much as nine potential civic compliance examinations" of private sector entities within 120 days of the order - by May 21, 2025.

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

Organizations that may be targeted should ask:

- What is my organization's risk tolerance?
- How will employees respond to the business's actions?
- How will clients and stakeholders react?
What internal counsel should think of:

Assess any federal contracts and grants

- Determine if they include any terms or conditions associated with DEI that might clash with current laws and guidelines
Review your company's existing DEI policies to understand your danger

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

- Hiring and recruitment processes
- Performance examinations and
- Training products and attendance records
- Any changes to DEI policies
Implications for federal professionals

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

- "A term requiring the legal counterparty or grant recipient to agree that its compliance in all respects with all suitable Federal anti-discrimination laws is material to the federal government's payment choices for purposes of section 3729( b)( 4) of title 31, United States Code"; and
- "A term requiring such counterparty or recipient to accredit that it does not operate any programs promoting DEI that breach any applicable 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 charges on those who make incorrect claims to the federal government in order to influence the payment or invoice of money or residential or commercial property.

The certification requirement carries a prospective danger of lawsuits for federal specialists under the False Claims Act. In-house legal representatives at federal professionals therefore have a specific interest in guaranteeing their organization's policies, procedures, practices, communications and material, are examined. Assess if adjustments are needed to alleviate the threat of lawsuits.

Executive orders targeting illegal migration

President Trump's preliminary flurry of executive orders consisted of many - such as the Jan. 20 executive order "Protecting the American People Against Invasion" - targeted at restricting unlawful immigration and deporting prohibited immigrants. The orders require enforcement actions by federal companies versus prohibited migration.

In-house attorneys must consider examining their company's employment eligibility verification process. They may 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 migration enforcement agencies.

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 estimates that more than one million undocumented immigrants operate in hospitality, representing 7.1 percent of the workforce.

In-house counsel have an essential function to play in developing and ensuring constant application of the Form I-9 and E-Verify policies the federal government uses to implement and enforce 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.

Have a look at helpful checklists of considerations pertinent for in-house attorneys on the subject of I-9 audits and worksite enforcement actions.

If a company does not cooperate with a civil administrative warrant presented by US Immigration and Customs Enforcement (ICE), there is a danger that the company could start an I-9 audit if they felt a company was obstructing their need to arrest a non-citizen employee, or sometimes obtain a criminal warrant from a judge if actions support it.

Steps internal counsel need to think about:

- Determine the number of workers could potentially be impacted
- Review your company's work eligibility confirmation process
- Ensure your organization's procedure is documented and defensible
- Implement and enforce clear policies
- Monitor legal advancements, consisting of lawsuits and enforcement guidance
Mitigate danger, stay nimble, and seize new chances

The recent executive orders will substantially impact worldwide businesses. Legal departments and internal counsel will need to help their companies understand and adjust to modifications, ensuring compliance or litigating when proper.

Many of the new administration's choices will play out over the coming months, including new executive orders and legal challenges. The Docket will continue to keep track of developments. Global internal lawyers need to get ready for rapid developments associated with:

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 participates in negotiations. Meanwhile, China has begun its own retaliatory steps on US items. He had previously announced his intent to impose 25-percent intensifying tariffs on Colombia (an action that was eventually not taken).
Technology and intellectual home. One of the president's very first actions was to rescind the previous administration's AI executive order. The brand-new administration likewise extended a grace period for TikTok's impending ban, sending out waves throughout the innovation sector, both in the United States and abroad.
Energy, environment, and health. The president likewise withdrew the United States from the Paris Climate Agreement and the World Health Organization, putting an early emphasis on American energy self-reliance and away from the previous administration's global sustainability efforts.
Steps in-house counsel must consider:

- Assess the effect of potential tariff increases on supply chain and organization connection.
- Assess the company's reliance on social media platforms, such as for marketing functions, and the potential needs to backup social media information and possessions in case their chosen platform stops to be readily available.
- Consider how developments in the brand-new administration's approach to ecological, sustainability and governance issues may impact the organization's ESG technique.
Disclaimer: The details in any resource in this website must not be interpreted as legal advice or as a legal viewpoint on specific realities, and should not be considered representing the views of its authors, its sponsors, and/or ACC. These resources are not planned as a definitive statement on the subject attended to. Rather, they are meant to work as a tool offering practical guidance and recommendations for the hectic in-house professional and other readers.