Remind me, what's an executive order?

Executive orders are instructions bought by the president of the United States that direct federal government agencies and officials to take particular actions. While they are not laws, they have the force of law and effect how existing laws are executed or enforced.

Executive orders affect the agencies 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 in court if considered unconstitutional.

Executive orders might be rescinded, overturned by future presidents, or challenged in court, and enforcement priorities can change throughout any administration.

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

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

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

EO 11246 required every federal government agreement to include a declaration that the professional will not victimize any worker or applicant for employment based on race, creed, color, or nationwide origin.

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

However, the executive order signals that there might be changing enforcement concerns in the brand-new administration. The order directs all federal companies to "fight 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 office, pointing to his record of "taking legal action against corporations who use 'woke' policies to victimize their workers."

In addition to revoking EO 11246, the Jan. 21 executive order instructs each agency of the federal government to determine "up to 9 possible civic compliance examinations" of private sector entities within 120 days of the order - by May 21, 2025.

The economic sector entities based on these examinations include openly traded corporations, large nonprofits - consisting of 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 risk tolerance?
- How will staff members respond to the business's actions?
- How will customers and stakeholders respond?
What in-house counsel should consider:

Assess any federal agreements and grants

- Determine if they include any terms or conditions related to DEI that may clash with existing laws and regulations
Review your company's existing DEI policies to comprehend your danger

- Prepare for increased analysis and prospective civil compliance investigations
Document, file, document

- Hiring and recruitment procedures
- Performance assessments and promotion choices
- Training materials and participation records
- Any changes to DEI policies
Implications for federal professionals

To name a few procedures, 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 agree that its compliance in all respects with all suitable Federal anti-discrimination laws is product to the federal government's payment choices 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 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 enforces civil penalties on those who make incorrect claims to the federal government in order to affect the payment or receipt of cash or residential or commercial property.

The certification requirement carries a potential threat of lawsuits for federal specialists under the False Claims Act. In-house legal representatives at federal professionals hence have a specific interest in guaranteeing their company's policies, procedures, practices, communications and material, are examined. Assess if adjustments are required to reduce the risk of lawsuits.

Executive orders targeting prohibited 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" - focused on restricting prohibited immigration and deporting prohibited immigrants. The orders call for enforcement actions by federal agencies against prohibited immigration.

In-house attorneys must consider reviewing their company's employment eligibility verification procedure. They might likewise wish to think about whether the organization is gotten ready for responding to an I-9 audit or a worksite enforcement action (or raid) by migration enforcement companies.

Sectors that might 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 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 an important role to play in establishing and guaranteeing consistent application of the Form I-9 and E-Verify guidelines the federal government utilizes to execute 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 post.

Have a look at informative lists of factors to consider pertinent for internal lawyers on the subject of I-9 audits and worksite enforcement actions.

If an employer does not work together with a civil administrative warrant presented by US Immigration and Customs Enforcement (ICE), there is a threat that the company might begin an I-9 audit if they felt an employer was obstructing their requirement to apprehend a non-citizen staff member, or sometimes obtain a criminal warrant from a judge if actions support it.

Steps internal counsel should consider:

- Determine how numerous workers might potentially be affected
- Review your company's employment eligibility verification procedure
- Ensure your organization's process is documented and defensible
- Implement and enforce clear policies
- Monitor legal advancements, consisting of litigation and enforcement assistance
Mitigate threat, remain active, and seize new chances

The current executive orders will considerably affect global businesses. Legal departments and internal counsel will need to help their organizations comprehend and adjust to modifications, making sure compliance or litigating when suitable.

A lot of the brand-new administration's decisions will play out over the coming months, consisting of brand-new executive orders and legal difficulties. The Docket will continue to keep track of advancements. Global internal lawyers need to prepare for fast 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 additional tariffs on imports from China. The previous 2 were both delayed by a month as the administration participates in negotiations. Meanwhile, China has begun its own vindictive measures on US goods. He had actually formerly announced his intent to enforce 25-percent intensifying tariffs on Colombia (an action that was eventually 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 innovation 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, employment putting an early focus on American energy self-reliance and far from the previous administration's worldwide sustainability efforts.
Steps in-house counsel need to think about:

- Assess the impact of prospective tariff boosts on supply chain and business continuity.
- Assess the company's dependency on social media platforms, such as for marketing functions, and the prospective requirements to backup social media data and assets in the event their chosen platform ceases to be offered.
- Consider how developments in the brand-new administration's approach to environmental, sustainability and governance problems might affect the company's ESG strategy.
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