Remind me, what's an executive order?

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

orders affect the firms of the executive branch and for that reason do not need the approval of Congress. They must be within the president's constitutional authority and may be challenged in court if considered unconstitutional.

Executive orders may be rescinded, overturned by future presidents, or challenged in court, and enforcement concerns can change throughout any administration.

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

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

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

EO 11246 needed every government contract to include a declaration that the professional will not victimize any worker or candidate for work based on 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 may be changing enforcement priorities in the new administration. The order directs all federal companies to "combat unlawful private-sector DEI choices, mandates, 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 utilize 'woke' policies to discriminate against their workers."

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

The economic sector entities subject to these examinations consist of publicly traded corporations, big nonprofits - including bar associations - big foundations, and universities whose endowments go beyond US$ 1 billion.

Organizations that may be targeted should ask:

- What is my organization's danger tolerance?
- How will employees respond to the business's actions?
- How will customers and stakeholders respond?
What in-house counsel ought to think of:

Assess any federal contracts and grants

- Determine if they contain any terms or conditions associated with DEI that might clash with present laws and guidelines
Review your organization's existing DEI policies to comprehend your threat

- Get ready for increased analysis and potential civil compliance investigations
Document, document, document

- Hiring and recruitment procedures
- Performance examinations and promo choices
- Training materials and presence records
- Any modifications to DEI policies
Implications for federal professionals

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

- "A term needing the legal counterparty or grant recipient to agree that its compliance in all respects with all relevant Federal anti-discrimination laws is product 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 certify that it does not run any programs promoting DEI that break 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 false claims to the government in order to affect the payment or receipt of cash or residential or commercial property.

The certification requirement carries a possible risk of lawsuits for federal contractors under the False Claims Act. In-house attorneys at federal professionals thus have a specific interest in ensuring their organization's policies, treatments, practices, interactions and material, are reviewed. Assess if modifications are needed to alleviate the threat of lawsuits.

Executive orders targeting prohibited migration

President Trump's preliminary flurry of executive orders included lots of - such as the Jan. 20 executive order "Protecting the American People Against Invasion" - targeted at restricting illegal migration and deporting prohibited immigrants. The orders call for enforcement actions by federal firms against illegal migration.

In-house attorneys need to consider reviewing their company's work eligibility verification procedure. They may likewise wish to consider whether the company is prepared for responding to an I-9 audit or a worksite enforcement action (or raid) by migration enforcement companies.

Sectors that may be especially impacted include agriculture, hospitality, and other industries such as 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 essential role to play in developing and guaranteeing constant application of the Form I-9 and E-Verify regulations the federal government utilizes to carry out and implement immigration law, shares John W. Mazzeo, AGC, director of I-9 and E-Verify compliance for Vertical Screen, Inc., in a 2024 ACC Docket article.

Have a look at informative lists of considerations appropriate for employment in-house legal representatives on the subject 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 company could commence an I-9 audit if they felt a company was blocking their need to apprehend a non-citizen worker, or sometimes acquire a criminal warrant from a judge if actions support it.

Steps in-house counsel need to think about:

- Determine the number of workers might possibly be impacted
- Review your company's work eligibility confirmation process
- Ensure your company's process is recorded and defensible
- Implement and enforce clear policies
- Monitor legal advancements, including lawsuits and enforcement guidance
Mitigate risk, remain active, and seize brand-new opportunities

The recent executive orders will substantially impact global companies. Legal departments and in-house counsel will require to assist their organizations understand and adjust to modifications, guaranteeing compliance or litigating when appropriate.

Much of the new administration's decisions will play out over the coming months, consisting of brand-new executive orders and legal obstacles. The Docket will continue to keep track of advancements. Global in-house legal representatives must prepare for fast developments connected 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 former two were both delayed by a month as the administration participates in negotiations. Meanwhile, China has actually started its own vindictive procedures on US items. He had formerly announced his intent to impose 25-percent intensifying tariffs on Colombia (an action that was eventually not taken).
Technology and copyright. Among the president's very first actions was to rescind the previous administration's AI executive order. The new administration likewise extended a grace period for TikTok's approaching restriction, sending out waves throughout the innovation 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 emphasis on American energy self-reliance and away from the previous administration's global sustainability efforts.
Steps internal counsel need to think about:

- Assess the effect of potential tariff increases on supply chain and organization continuity.
- Assess the company's reliance on social media platforms, such as for marketing purposes, and the prospective requirements to backup social networks information and employment possessions in the event their preferred platform stops to be available.
- Consider how advancements in the new administration's method to environmental, employment sustainability and governance problems might affect the organization's ESG method.
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