Remind me, what's an executive order?

Executive orders are regulations bought by the president of the United States that direct 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 implemented or implemented.

Executive orders impact the companies of the executive branch and for that reason 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Executive orders may be rescinded, overturned by future presidents, or challenged in court, and enforcement top priorities can change during any administration.

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

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

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

EO 11246 needed every government agreement to include a statement that the professional will not victimize any worker or candidate for employment based upon race, creed, color, or national 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 altering enforcement priorities in the new administration. The order directs all federal firms to "combat 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 office, pointing to 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 instructs each company of the federal government to recognize "approximately 9 possible civic compliance investigations" of private sector entities within 120 days of the order - by May 21, 2025.

The personal sector entities subject to these examinations consist of openly traded corporations, large nonprofits - including bar associations - large structures, and universities whose endowments surpass US$ 1 billion.

Organizations that may be targeted should ask:

- What is my organization's threat tolerance?
- How will staff members react to the ?
- How will customers and stakeholders react?
What internal counsel must consider:

Assess any federal agreements and grants

- Determine if they consist of any terms or conditions associated with DEI that might contravene existing laws and regulations
Review your organization's existing DEI policies to comprehend your risk

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

- Hiring and recruitment processes
- Performance assessments and promotion decisions
- Training products and attendance records
- Any changes to DEI policies
Implications for federal specialists

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

- "A term requiring the legal counterparty or grant recipient to agree that its compliance in all aspects with all relevant Federal anti-discrimination laws is product to the government's payment choices for purposes of area 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 penalties on those who make incorrect claims to the government in order to affect the payment or receipt of cash or home.

The accreditation requirement carries a prospective danger of lawsuits for federal specialists under the False Claims Act. In-house legal representatives at federal contractors hence have a specific interest in ensuring their company's policies, procedures, practices, communications and content, are evaluated. Assess if changes are required to mitigate the risk of litigation.

Executive orders targeting unlawful immigration

President Trump's initial flurry of executive orders included lots of - such as the Jan. 20 executive order "Protecting the American People Against Invasion" - intended at restricting prohibited migration and deporting prohibited immigrants. The orders require enforcement actions by federal agencies against illegal immigration.

In-house lawyers must think about examining their company's employment eligibility confirmation procedure. They may also wish to think about whether the company is gotten ready for reacting to an I-9 audit or a worksite enforcement action (or raid) by immigration enforcement companies.

Sectors that may be especially affected consist of agriculture, 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 estimates that more than one million undocumented immigrants operate in hospitality, representing 7.1 percent of the workforce.

In-house counsel have a crucial function to play in establishing and making sure constant application of the Form I-9 and E-Verify guidelines the federal government uses to execute 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 short article.

Have a look at helpful lists of considerations appropriate for in-house 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 risk that the agency might begin an I-9 audit if they felt a company was blocking their need to jail a non-citizen staff member, or sometimes acquire a criminal warrant from a judge if actions support it.

Steps internal counsel should think about:

- Determine the number of employees might possibly be impacted
- Review your company's work eligibility confirmation process
- Ensure your company's process is recorded and defensible
- Implement and implement clear policies
- Monitor legal developments, consisting of lawsuits and enforcement guidance
Mitigate threat, remain nimble, and take brand-new chances

The recent executive orders will significantly impact global businesses. Legal departments and in-house counsel will need to help their companies comprehend and adapt to changes, making sure compliance or litigating when suitable.

A number of the brand-new administration's decisions will play out over the coming months, consisting of new executive orders and legal challenges. The Docket will continue to keep track of developments. Global internal legal representatives need to get ready for fast developments associated with:

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 former 2 were both postponed by a month as the administration engages in negotiations. Meanwhile, employment China has started its own vindictive measures on US goods. He had previously revealed his intent to impose 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 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 waves throughout the technology sector, both in the United States and abroad.
Energy, environment, 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 away from the previous administration's global sustainability efforts.
Steps internal counsel must think about:

- Assess the effect of potential tariff increases on supply chain and business continuity.
- Assess the company's dependency on social media platforms, such as for marketing functions, and the prospective needs to backup social media information and possessions in case their chosen platform stops to be readily available.
- Consider how developments in the new administration's technique to environmental, sustainability and governance problems may impact the company's ESG strategy.
Disclaimer: The info in any resource in this site ought to not be interpreted as legal guidance or as a legal viewpoint on specific realities, and must not be considered representing the views of its authors, its sponsors, and/or ACC. These resources are not planned as a definitive declaration on the subject dealt with. Rather, they are meant to work as a tool providing useful guidance and referrals for the busy in-house specialist and other readers.