Remind me, what's an executive order?

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

Executive orders impact the agencies of the executive branch and therefore do not need 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Executive orders might be rescinded, overturned by future presidents, or employment challenged in court, and enforcement priorities can alter during any administration.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, international companies can take 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 provided "Ending Illegal Discrimination and Restoring Merit-Based Opportunity," which reverses various prior 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 contract to include a declaration that the specialist will not victimize any worker or candidate for work based on race, creed, color, or nationwide origin.

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

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

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

The private sector employment entities subject to these investigations include openly traded corporations, large nonprofits - consisting of bar associations - big foundations, and employment universities whose endowments exceed US$ 1 billion.

Organizations that may be targeted should ask:

- What is my organization's danger tolerance?
- How will workers respond to the business's actions?
- How will customers and stakeholders react?
What internal counsel should think about:

Assess any federal contracts and grants

- Determine if they include any terms or conditions connected to DEI that might contrast with current laws and regulations
Review your organization's existing DEI policies to understand your threat

- Prepare for increased scrutiny and prospective civil compliance examinations
Document, employment file, document

- Hiring and recruitment procedures
- Performance assessments and promotion decisions
- Training materials and participation records
- Any modifications to DEI policies
Implications for employment federal specialists

To name a few steps, the Jan. 21 Executive Order requires the heads of federal companies to consist of specific terms in every contract or grant award:

- "A term needing the legal counterparty or grant recipient to concur that its compliance in all aspects with all applicable Federal anti-discrimination laws is material to the 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 certify that it does not operate any programs promoting DEI that violate 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 charges on those who make incorrect claims to the federal government in order to influence the payment or invoice of money or property.

The certification requirement brings a prospective threat of litigation for federal specialists under the False Claims Act. In-house attorneys at federal specialists hence have a specific interest in guaranteeing their company's policies, procedures, practices, communications and material, are reviewed. Assess if adjustments are required to alleviate the risk of litigation.

Executive orders targeting prohibited migration

President Trump's preliminary flurry of executive orders included numerous - such as the Jan. 20 executive order "Protecting the American People Against Invasion" - targeted at limiting illegal migration and deporting unlawful immigrants. The orders require enforcement actions by federal firms versus illegal immigration.

In-house attorneys need to consider reviewing their organization's employment eligibility confirmation procedure. They may also wish to consider whether the organization is gotten ready for reacting to an I-9 audit or a worksite enforcement action (or raid) by migration enforcement agencies.

Sectors that may be particularly affected include agriculture, hospitality, and other markets 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 estimates 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 establishing and making sure constant application of the Form I-9 and E-Verify guidelines the federal government utilizes to execute and impose 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.

Check out useful lists 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 begin an I-9 audit if they felt an employer was blocking their need to jail a non-citizen worker, or in some cases acquire a criminal warrant from a judge if actions support it.

Steps ought to consider:

- Determine the number of employees might possibly be affected
- Review your company's work eligibility confirmation process
- Ensure your company's process is documented and defensible
- Implement and enforce clear policies
- Monitor legal developments, consisting of litigation and enforcement guidance
Mitigate threat, remain active, and seize brand-new chances

The recent executive orders will significantly impact international businesses. Legal departments and internal counsel will need to assist their companies understand and adjust to changes, ensuring compliance or litigating when appropriate.

A number of the brand-new administration's choices will play out over the coming months, consisting of new executive orders and legal difficulties. The Docket will continue to keep an eye on developments. Global internal legal representatives should get ready for quick developments associated with:

Trade and tariffs. On Feb. 1, President Trump ordered the imposition of a 25-percent tariff on imports from Canada and Mexico, and 10-percent extra tariffs on imports from China. The former two were both postponed by a month as the administration participates in settlements. Meanwhile, China has begun its own vindictive measures on US items. He had formerly revealed his intent to enforce 25-percent intensifying tariffs on Colombia (an action that was eventually not taken).
Technology and copyright. Among 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 approaching restriction, sending 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 focus on American energy self-reliance and away from the previous administration's worldwide sustainability efforts.
Steps in-house counsel must think about:

- Assess the impact of possible tariff increases on supply chain and organization connection.
- Assess the organization's reliance on social networks platforms, such as for marketing functions, and the possible needs to backup social networks data and properties in the occasion their preferred platform ceases to be readily available.
- Consider how advancements in the new administration's technique to ecological, sustainability and governance problems might affect the organization's ESG method.
Disclaimer: The details in any resource in this site should not be interpreted as legal advice or as a legal opinion on particular truths, and should not be considered representing the views of its authors, its sponsors, and/or ACC. These resources are not meant as a definitive declaration on the subject dealt with. Rather, they are intended to act as a tool offering useful assistance and recommendations for the busy in-house professional and other readers.