Remind me, what's an executive order?

Executive orders are regulations purchased by the president of the United States that direct government companies and officials to take particular actions. While they are not laws, they have the force of law and employment effect how existing laws are executed or implemented.

Executive orders affect the agencies of the executive branch and for that reason do not require the approval of Congress. They should be within the president's constitutional authority and may be challenged in court if deemed unconstitutional.

Executive orders might be rescinded, overturned by future presidents, or challenged in court, and enforcement top priorities can change throughout any administration.

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

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

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

EO 11246 required every federal government agreement to consist of a statement that the contractor will not victimize any worker or candidate for employment based upon race, creed, color, or national origin.

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

However, the executive order signals that there might be altering enforcement top priorities in the brand-new administration. The order directs all federal agencies to "combat unlawful 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 liberties workplace, pointing to his record of "suing corporations who utilize 'woke' policies to victimize their employees."

In addition to withdrawing EO 11246, the Jan. 21 executive order advises each company of the federal government to determine "approximately nine potential civic compliance investigations" of private sector entities within 120 days of the order - by May 21, 2025.

The economic sector entities subject to these investigations include publicly traded corporations, large nonprofits - consisting of bar associations - big structures, and universities whose endowments exceed 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 respond?
What in-house counsel needs to think of:

Assess any federal agreements and grants

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

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

- Hiring and recruitment processes
- Performance examinations and promotion decisions
- Training materials and participation records
- Any modifications to DEI policies
Implications for federal professionals

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

- "A term needing the legal counterparty or grant recipient to agree that its compliance in all aspects with all suitable Federal anti-discrimination laws is product to the government's payment decisions for purposes of area 3729( b)( 4) of title 31, United States Code"; and
- "A term requiring such counterparty or recipient to accredit that it does not run any programs promoting DEI that breach any suitable 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 enforces civil charges on those who make incorrect claims to the federal government in order to influence the payment or invoice of money or home.

The certification requirement brings a potential risk of litigation for federal specialists under the False Claims Act. In-house lawyers at federal specialists therefore have a particular interest in ensuring their company's policies, procedures, practices, communications and material, are examined. Assess if changes are required to mitigate the risk of litigation.

Executive orders targeting prohibited migration

President flurry of executive orders included numerous - such as the Jan. 20 executive order "Protecting the American People Against Invasion" - aimed at limiting unlawful immigration and deporting prohibited immigrants. The orders call for enforcement actions by federal firms versus unlawful immigration.

In-house attorneys must think about examining their company's employment eligibility verification procedure. They may likewise want to think about whether the organization is prepared for reacting to an I-9 audit or a worksite enforcement action (or raid) by immigration enforcement agencies.

Sectors that may be especially affected include agriculture, hospitality, and other markets such as building and construction. 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 workforce.

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

Have a look at informative lists of considerations pertinent for internal attorneys on the topic of I-9 audits and worksite enforcement actions.

If an employer does not comply with a civil administrative warrant provided by US Immigration and Customs Enforcement (ICE), there is a danger that the agency might commence an I-9 audit if they felt an employer was blocking their requirement to apprehend a non-citizen employee, or in some cases obtain a criminal warrant from a judge if actions support it.

Steps in-house counsel ought to consider:

- Determine the number of employees could possibly be impacted
- Review your organization's work eligibility confirmation process
- Ensure your organization's procedure is documented and defensible
- Implement and implement clear policies
- Monitor legal advancements, consisting of lawsuits and enforcement guidance
Mitigate threat, remain nimble, and seize new opportunities

The current executive orders will substantially affect global services. Legal departments and in-house counsel will require to assist their companies understand and adjust to changes, making sure compliance or litigating when suitable.

Many of the new administration's decisions will play out over the coming months, consisting of new executive orders and legal difficulties. The Docket will continue to keep track of advancements. Global internal lawyers must 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 engages in negotiations. Meanwhile, China has actually started its own retaliatory measures on US goods. He had previously revealed his intent to impose 25-percent escalating tariffs on Colombia (an action that was ultimately not taken).
Technology and intellectual property. Among the president's first actions was to rescind the previous administration's AI executive order. The brand-new administration likewise extended a grace period 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, putting an early focus on American energy self-reliance and far from the previous administration's global sustainability efforts.
Steps in-house counsel need to think about:

- Assess the effect of potential tariff boosts on supply chain and organization continuity.
- Assess the organization's dependence on social media platforms, such as for marketing functions, and the possible requirements to backup social media data and possessions in case their chosen platform stops to be offered.
- Consider how developments in the brand-new administration's approach to environmental, sustainability and governance issues may impact the company's ESG strategy.
Disclaimer: The information in any resource in this site ought to not be construed as legal advice or as a legal opinion on particular facts, and must not be thought about 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 function as a tool offering practical guidance and references for the hectic internal practitioner and other readers.