Remind me, what's an executive order?

Executive orders are regulations ordered by the president of the United States that direct federal government firms and officials to take particular actions. While they are not laws, they have the force of law and effect how existing laws are carried out or enforced.

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

Executive orders might be rescinded, overturned by future presidents, or challenged in court, and enforcement priorities can alter during any administration.

The brand-new administration's actions have significant effects beyond executive orders. For more on mitigating risk, global businesses can take new opportunities by staying nimble.

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

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

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

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

However, the executive order signals that there may be changing enforcement priorities in the new administration. The order directs all federal companies to "fight prohibited private-sector DEI preferences, requireds, policies, programs, and activities."

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

In addition to revoking EO 11246, the Jan. 21 executive order instructs each company of the federal government to identify "up to 9 prospective civic compliance investigations" of personal sector entities within 120 days of the order - by May 21, 2025.

The economic sector entities subject to these examinations include openly traded corporations, big nonprofits - consisting of bar associations - big foundations, and universities whose endowments go beyond US$ 1 billion.

Organizations that may be targeted should ask:

- What is my company's danger tolerance?
- How will staff members react to the company's actions?
- How will clients and stakeholders react?
What in-house counsel needs to consider:

Assess any federal contracts and grants

- Determine if they consist of any terms or conditions associated with DEI that might contrast with existing laws and policies
Review your organization's existing DEI policies to understand your threat

- Get ready for increased examination and potential civil compliance examinations
Document, file, file

- Hiring and recruitment procedures
- Performance evaluations and promotion choices
- Training products and presence records
- Any changes to DEI policies
Implications for federal professionals

Among other measures, the Jan. 21 Executive Order needs the heads of federal firms to include particular terms in every contract or grant award:

- "A term requiring the legal counterparty or grant recipient to concur that its compliance in all aspects with all applicable Federal anti-discrimination laws is product to the government's payment decisions for functions of section 3729( b)( 4) of title 31, United States Code"; and
- "A term needing such counterparty or recipient to license 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 a provision of the US False Claims Act, a federal law that imposes civil charges on those who make incorrect claims to the government in order to influence the payment or invoice of cash or residential or commercial property.

The accreditation requirement carries a possible danger of lawsuits for federal specialists under the False Claims Act. In-house attorneys at federal specialists hence have a particular interest in guaranteeing their company's policies, procedures, practices, interactions and content, are reviewed. Assess if changes are needed to reduce the danger of lawsuits.

Executive orders targeting illegal 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" - aimed at limiting prohibited migration and deporting illegal immigrants. The orders require enforcement actions by federal agencies against illegal immigration.

In-house legal representatives should think about evaluating their organization's employment eligibility confirmation procedure. They may likewise desire to think about whether the organization is gotten ready for reacting to an I-9 audit or a worksite enforcement action (or raid) by immigration enforcement agencies.

Sectors that might be especially impacted consist of agriculture, hospitality, and other markets such as building. 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 operate in hospitality, representing 7.1 percent of the labor force.

In-house counsel have an important function to play in establishing and guaranteeing constant application of the Form I-9 and E-Verify policies the federal government utilizes to carry out and enforce migration 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 informative lists of considerations appropriate 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), job there is a threat that the agency could start an I-9 audit if they felt an employer was blocking their requirement to detain a non-citizen worker, or sometimes get a criminal warrant from a judge if actions support it.

Steps internal counsel must consider:

- Determine the number of employees might possibly be impacted
- Review your organization's employment eligibility confirmation process
- Ensure your company's process is documented and defensible
- Implement and implement clear policies
- Monitor legal advancements, consisting of litigation and enforcement guidance
Mitigate danger, stay nimble, and seize brand-new chances

The current executive orders will significantly impact global organizations. Legal departments and in-house counsel will need to help their companies comprehend and adapt to modifications, guaranteeing compliance or litigating when proper.

Much of the brand-new administration's choices will play out over the coming months, consisting of new executive orders and legal challenges. The Docket will continue to monitor advancements. Global in-house legal representatives must get ready for quick developments 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 previous 2 were both delayed by a month as the administration participates in settlements. Meanwhile, China has started its own retaliatory measures on US products. He had actually formerly announced his intent to impose 25-percent intensifying tariffs on Colombia (an action that was eventually not taken).
Technology and intellectual property. One of the president's very first actions was to rescind the previous administration's AI executive order. The brand-new administration also extended a grace duration for TikTok's upcoming ban, sending waves throughout the technology sector, both in the United States and abroad.
Energy, climate, 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 independence and away from the previous administration's international sustainability efforts.
Steps in-house counsel should consider:

- Assess the effect of potential tariff boosts on supply chain and organization continuity.
- Assess the organization's dependence on platforms, such as for marketing purposes, and the potential requirements to backup social media data and possessions in case their chosen platform stops to be offered.
- Consider how developments in the new administration's approach to environmental, sustainability and governance problems may impact the organization's ESG technique.
Disclaimer: The information in any resource in this website should not be interpreted as legal recommendations 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 intended as a conclusive statement on the subject attended to. Rather, they are intended to work as a tool providing useful guidance and recommendations for the hectic in-house practitioner and other readers.