Remind me, what's an executive order?

Executive orders are directives purchased by the president of the United States that direct federal government companies and authorities to take particular actions. While they are not laws, they have the force of law and impact how existing laws are carried out or imposed.

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

Executive orders may be rescinded, reversed by future presidents, or challenged in court, and enforcement priorities can alter during any administration.

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

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

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

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

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

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

In December 2024, President-elect Trump tapped Harmeet K. Dhillon to lead the Justice Department's civil rights workplace, pointing to his record of "suing corporations who utilize 'woke' policies to discriminate against their employees."

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

The personal sector entities based on these investigations consist of openly traded corporations, big nonprofits - including bar associations - big structures, 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 workers react to the company's actions?
- How will customers and stakeholders react?
What in-house counsel should think about:

Assess any federal agreements and grants

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

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

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

To name a few procedures, the Jan. 21 Executive Order requires the heads of federal agencies to include particular terms in every agreement or grant award:

- "A term requiring the contractual counterparty or grant recipient to concur that its compliance in all aspects with all relevant Federal anti-discrimination laws is material to the federal 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 accredit that it does not run any programs promoting DEI that break any relevant Federal anti-discrimination laws."
Section 3729 of title 31 of the United States Code is an arrangement of the US False Claims Act, employment a federal law that enforces civil penalties on those who make false claims to the federal government in order to influence the payment or invoice of money or property.

The certification requirement brings a potential threat of litigation for federal professionals under the False Claims Act. In-house lawyers at federal contractors therefore have a particular interest in ensuring their company's policies, treatments, practices, interactions and material, employment are evaluated. Assess if adjustments are required to mitigate the risk of litigation.

Executive orders targeting unlawful immigration

President Trump's initial flurry of executive orders consisted of many - such as the Jan. 20 executive order "Protecting the American People Against Invasion" - focused on limiting unlawful immigration and deporting prohibited immigrants. The orders call for enforcement actions by federal agencies versus illegal immigration.

In-house attorneys must think about reviewing their company's employment eligibility verification process. They might likewise want to consider whether the organization is prepared for reacting to an I-9 audit or a worksite enforcement action (or raid) by migration enforcement firms.

Sectors that might be particularly impacted include agriculture, hospitality, and other markets 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 work in hospitality, representing 7.1 percent of the workforce.

In-house counsel have a crucial role to play in developing and making sure consistent application of the Form I-9 and E-Verify policies the federal government utilizes to carry out 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 post.

Have a look at helpful checklists of factors to consider appropriate 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 company could begin an I-9 audit if they felt a company was blocking their requirement to detain a non-citizen employee, or sometimes get a criminal warrant from a judge if actions support it.

Steps in-house counsel should think about:

- Determine how lots of employees could potentially be affected
- Review your organization's employment eligibility verification process
- Ensure your organization's procedure is documented and defensible
- Implement and enforce clear policies
- Monitor legal developments, consisting of litigation and employment enforcement guidance
Mitigate danger, remain nimble, and seize new opportunities

The recent executive orders will significantly affect global organizations. Legal departments and internal counsel will require to help their companies comprehend and adapt to changes, making sure compliance or litigating when appropriate.

Much of the brand-new administration's decisions will play out over the coming months, consisting of new executive orders and legal obstacles. The Docket will continue to keep an eye on developments. Global internal legal representatives must get ready for rapid advancements associated with:

Trade and . On Feb. 1, President Trump purchased the imposition of a 25-percent tariff on imports from Canada and Mexico, and 10-percent additional tariffs on imports from China. The previous 2 were both postponed by a month as the administration participates in negotiations. Meanwhile, China has started its own vindictive steps on US products. He had actually formerly announced his intent to enforce 25-percent intensifying tariffs on Colombia (an action that was eventually not taken).
Technology and intellectual residential or commercial property. 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 duration for TikTok's approaching 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 focus on American energy independence and far from the previous administration's worldwide sustainability efforts.
Steps internal counsel must consider:

- Assess the effect of possible tariff boosts on supply chain and business connection.
- Assess the organization's dependency on social networks platforms, such as for marketing purposes, employment and the possible needs to backup social networks information and properties in the event their preferred platform stops to be available.
- Consider how developments in the new administration's approach to ecological, sustainability and governance concerns may affect the organization's ESG method.
Disclaimer: The info in any resource in this site should not be construed as legal suggestions or employment as a legal viewpoint on specific facts, and should not be considered representing the views of its authors, its sponsors, and/or ACC. These resources are not intended as a definitive declaration on the subject attended to. Rather, they are meant to work as a tool supplying useful guidance and referrals for the busy internal professional and other readers.