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 specific actions. While they are not laws, they have the force of law and effect how existing laws are carried out or implemented.

Executive orders impact the companies of the executive branch and for that reason do not need the of Congress. They should be within the president's constitutional authority and might be challenged in court if considered unconstitutional.

Executive orders might be rescinded, reversed by future presidents, or challenged in court, and enforcement top priorities can alter during any administration.

The new administration's actions have significant effects beyond executive orders. For more on mitigating danger, global companies can take new chances by staying nimble.

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

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) signed in 1965 by President Lyndon B. Johnson.

EO 11246 required every government agreement to include a declaration that the specialist will not discriminate versus any worker or applicant for employment based on race, creed, color, or nationwide origin.

Despite President Trump's brand-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 new administration. The order directs all federal companies to "combat illegal 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, indicating his record of "taking legal action against corporations who use 'woke' policies to discriminate versus their employees."

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

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

Organizations that may be targeted should ask:

- What is my company's risk tolerance?
- How will staff members respond to the company's actions?
- How will consumers and stakeholders react?
What in-house counsel should believe about:

Assess any federal contracts and grants

- Determine if they contain any terms or conditions connected to DEI that may conflict with current laws and regulations
Review your company's existing DEI policies to understand your risk

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

- Hiring and recruitment procedures
- Performance evaluations and promo choices
- Training materials and attendance records
- Any changes to DEI policies
Implications for federal contractors

Among other procedures, the Jan. 21 Executive Order requires the heads of federal firms to include particular terms in every contract or grant award:

- "A term requiring the contractual counterparty or grant recipient to agree that its compliance in all respects with all suitable Federal anti-discrimination laws is material to the federal government's payment choices for functions 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 appropriate 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 government in order to affect the payment or receipt of cash or home.

The certification requirement brings a prospective risk of lawsuits for federal specialists under the False Claims Act. In-house lawyers at federal professionals hence have a particular interest in ensuring their organization's policies, procedures, practices, communications and material, are examined. Assess if changes are needed to reduce the risk of lawsuits.

Executive orders targeting unlawful immigration

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

In-house lawyers ought to think about examining their company's employment eligibility confirmation procedure. They may also desire 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 particularly impacted consist of 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 approximates that more than one million undocumented immigrants work in hospitality, representing 7.1 percent of the workforce.

In-house counsel have an essential function to play in establishing and making sure consistent application of the Form I-9 and E-Verify regulations the federal government utilizes to carry out 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 post.

Have a look at informative checklists of factors to consider appropriate for in-house lawyers on the subject of I-9 audits and worksite enforcement actions.

If an employer does not comply with a civil administrative warrant presented by US Immigration and Customs Enforcement (ICE), employment there is a risk that the agency could begin an I-9 audit if they felt a company was blocking their need to jail a non-citizen employee, or in many cases obtain a criminal warrant from a judge if actions support it.

Steps in-house counsel must think about:

- Determine how many workers could possibly be impacted
- Review your organization's employment eligibility verification process
- Ensure your company's procedure is documented and defensible
- Implement and enforce clear policies
- Monitor legal advancements, including lawsuits and enforcement guidance
Mitigate threat, remain nimble, and seize brand-new opportunities

The recent executive orders will significantly impact global organizations. Legal departments and internal counsel will require to assist their companies comprehend and adapt to changes, employment making sure compliance or litigating when suitable.

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 advancements. Global internal legal representatives need to prepare for fast developments related to:

Trade and tariffs. On Feb. 1, employment 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 two were both delayed by a month as the administration participates in negotiations. Meanwhile, China has started its own retaliatory procedures on US goods. He had formerly revealed his intent to enforce 25-percent escalating tariffs on Colombia (an action that was eventually not taken).
Technology and copyright. One of the president's first actions was to rescind the previous administration's AI executive order. The brand-new administration also extended a grace period for TikTok's upcoming ban, sending waves throughout the technology 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 employment the World Health Organization, putting an early emphasis on American energy independence and far from the previous administration's international sustainability efforts.
Steps internal counsel should think about:

- Assess the effect of potential tariff boosts on supply chain and company continuity.
- Assess the company's dependency on social networks platforms, such as for marketing purposes, and the possible needs to backup social media data and properties in the occasion their preferred platform stops to be readily available.
- Consider how advancements in the brand-new administration's method to ecological, sustainability and governance concerns might affect the company's ESG method.
Disclaimer: The details in any resource in this site must not be interpreted as legal recommendations or as a legal opinion on particular realities, and should not be thought about representing the views of its authors, its sponsors, and/or ACC. These resources are not meant as a conclusive statement on the subject resolved. Rather, they are planned to serve as a tool supplying useful guidance and referrals for the hectic in-house specialist and other readers.