GitLab

Remind me, what's an executive order?

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

Executive orders affect the firms 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Executive orders might be rescinded, employment overturned by future presidents, or challenged in court, and enforcement top priorities can change during any administration.

The brand-new administration's actions have far-reaching impacts beyond orders. For more on mitigating threat, global organizations can take new opportunities by remaining active.

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

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

EO 11246 needed every government contract to include a statement that the specialist will not discriminate against any worker or candidate for employment based upon 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 priorities in the new administration. The order directs all federal companies to "fight prohibited 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 rights office, pointing to his record of "taking legal action against corporations who utilize 'woke' policies to victimize their employees."

In addition to revoking EO 11246, the Jan. 21 executive order advises each firm of the federal government to determine "up to 9 potential 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 - including bar associations - large 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 employees respond to the business's actions?
- How will clients and stakeholders respond?
What internal counsel needs to consider:

Assess any federal contracts and grants

- Determine if they contain any terms or conditions connected to DEI that may contrast with existing laws and guidelines
Review your company's existing DEI policies to comprehend your risk

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

- Hiring and recruitment processes
- Performance evaluations and promo decisions
- Training materials and attendance records
- Any modifications to DEI policies
Implications for federal professionals

Among other steps, the Jan. 21 Executive Order needs the heads of federal firms to consist of specific terms in every contract or grant award:

- "A term needing the contractual counterparty or grant recipient to concur that its compliance in all respects with all applicable Federal anti-discrimination laws is product to the federal government's payment choices for purposes of area 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 relevant 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 imposes civil charges on those who make incorrect claims to the government in order to affect the payment or receipt of cash or property.

The accreditation requirement brings a prospective risk of litigation for federal specialists under the False Claims Act. In-house attorneys at federal professionals hence have a specific interest in guaranteeing their organization's policies, procedures, practices, interactions and content, are evaluated. Assess if adjustments are required to alleviate the risk of litigation.

Executive orders targeting illegal 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" - targeted at restricting unlawful immigration and deporting unlawful immigrants. The orders call for enforcement actions by federal companies versus prohibited migration.

In-house legal representatives need to think about reviewing their organization's employment eligibility confirmation process. They may likewise want to consider whether the company is gotten ready for reacting to an I-9 audit or a worksite enforcement action (or raid) by migration enforcement companies.

Sectors that might be particularly impacted include agriculture, hospitality, and other industries such as construction. From 2020-2022, 42 percent of crop farmworkers held no work permission, 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 labor force.

In-house counsel have a crucial function to play in developing and guaranteeing consistent application of the Form I-9 and E-Verify guidelines the federal government uses to implement and enforce 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.

Check out useful checklists of considerations pertinent for in-house attorneys on the topic of I-9 audits and worksite enforcement actions.

If an employer does not cooperate with a civil administrative warrant presented by US Immigration and Customs Enforcement (ICE), there is a danger that the agency could begin an I-9 audit if they felt a company was obstructing their requirement to detain a non-citizen worker, or sometimes get a criminal warrant from a judge if actions support it.

Steps internal counsel must think about:

- Determine the number of workers could possibly be impacted
- Review your organization's work eligibility confirmation procedure
- Ensure your company's procedure is recorded and defensible
- Implement and impose clear policies
- Monitor legal advancements, including lawsuits and enforcement assistance
Mitigate threat, remain active, and take brand-new chances

The recent executive orders will substantially affect worldwide services. Legal departments and in-house counsel will require to help their organizations comprehend and adjust to changes, guaranteeing compliance or litigating when suitable.

A number of the brand-new administration's choices will play out over the coming months, including new executive orders and legal challenges. The Docket will continue to keep an eye on advancements. Global internal legal representatives should get ready for fast 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 previous 2 were both postponed by a month as the administration engages in negotiations. Meanwhile, China has actually begun its own vindictive procedures on US items. He had previously announced 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 new administration also extended a grace duration for TikTok's impending ban, sending 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 internal counsel must consider:

- Assess the effect of prospective tariff boosts on supply chain and business continuity.
- Assess the organization's dependency on social media platforms, such as for marketing functions, and the potential needs to backup social networks information and possessions in case their preferred platform ceases to be offered.
- Consider how advancements in the new administration's approach to ecological, sustainability and governance concerns may affect the organization's ESG technique.
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