GitLab

Remind me, what's an executive order?

Executive orders are directives ordered by the president of the United States that direct government agencies 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 imposed.

Executive orders impact the agencies of the executive branch and therefore do not need the approval of Congress. They need to be within the president's constitutional authority and may be challenged in court if deemed unconstitutional.

Executive orders may be rescinded, overturned by future presidents, or challenged in court, and enforcement priorities can alter throughout any administration.

The brand-new administration's actions have far-reaching results beyond executive orders. For more on mitigating threat, international services can take brand-new chances by remaining active.

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

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

EO 11246 needed every federal government agreement to include a statement that the contractor will not victimize any employee or applicant for employment 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 employees.

However, the executive order signals that there might be altering enforcement top priorities in the new administration. The order directs all federal firms 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 liberties office, indicating his record of "suing corporations who utilize 'woke' policies to discriminate against their employees."

In addition to withdrawing EO 11246, the Jan. 21 executive order instructs each firm of the federal government to recognize "as much as 9 prospective 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 foundations, and universities whose endowments go beyond US$ 1 billion.

Organizations that may be should ask:

- What is my company's risk tolerance?
- How will workers respond to the business's actions?
- How will consumers and stakeholders respond?
What in-house counsel should consider:

Assess any federal contracts and grants

- Determine if they consist of any terms or conditions connected to DEI that may contravene present laws and regulations
Review your organization's existing DEI policies to comprehend your threat

- Prepare for increased examination and possible civil compliance investigations
Document, file, document

- Hiring and recruitment processes
- Performance evaluations and promotion choices
- Training products and presence records
- Any changes to DEI policies
Implications for federal contractors

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

- "A term needing the contractual counterparty or grant recipient to concur that its compliance in all respects with all suitable Federal anti-discrimination laws is material to the federal 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 run any programs promoting DEI that break any applicable 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 influence the payment or invoice of money or property.

The certification requirement carries a potential danger of litigation for federal professionals under the False Claims Act. In-house attorneys at federal professionals thus have a particular interest in ensuring their organization's policies, treatments, practices, interactions and material, are examined. Assess if changes are needed to alleviate the threat of litigation.

Executive orders targeting illegal migration

President Trump's preliminary flurry of executive orders consisted of lots of - such as the Jan. 20 executive order "Protecting the American People Against Invasion" - aimed at limiting unlawful migration and deporting prohibited immigrants. The orders call for enforcement actions by federal agencies against illegal immigration.

In-house attorneys should think about reviewing their organization's employment eligibility verification process. They might also want to think about whether the organization is prepared for reacting to an I-9 audit or a worksite enforcement action (or raid) by migration enforcement agencies.

Sectors that may be particularly impacted consist of farming, hospitality, and other markets such as building. 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 labor force.

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 implement and enforce migration law, shares John W. Mazzeo, AGC, director of I-9 and E-Verify compliance for Vertical Screen, Inc., in a 2024 ACC Docket article.

Check out helpful checklists of considerations relevant 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), there is a danger that the firm could start an I-9 audit if they felt an employer was blocking their requirement to arrest a non-citizen worker, or sometimes get a criminal warrant from a judge if actions support it.

Steps in-house counsel ought to consider:

- Determine how numerous staff members could potentially be affected
- Review your organization's employment eligibility confirmation procedure
- Ensure your organization's procedure is recorded and defensible
- Implement and implement clear policies
- Monitor legal advancements, including litigation and enforcement assistance
Mitigate risk, stay nimble, and take new chances

The current executive orders will substantially affect worldwide organizations. Legal departments and in-house counsel will require to assist their organizations comprehend and adapt to changes, making sure compliance or litigating when appropriate.

A lot of the brand-new administration's decisions will play out over the coming months, consisting of brand-new executive orders and legal difficulties. The Docket will continue to keep track of developments. Global in-house legal representatives must prepare for quick developments connected to:

Trade and tariffs. On Feb. 1, President Trump bought 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 postponed by a month as the administration engages in settlements. Meanwhile, China has actually started its own vindictive procedures on US items. He had formerly revealed his intent to impose 25-percent intensifying tariffs on Colombia (an action that was ultimately not taken).
Technology and intellectual property. 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 duration for TikTok's impending restriction, sending waves throughout the innovation sector, both in the United States and abroad.
Energy, environment, and health. The president likewise withdrew the United States from the Paris Climate Agreement and the World Health Organization, putting an early emphasis on American energy self-reliance and far from the previous administration's global sustainability efforts.
Steps in-house counsel must think about:

- Assess the impact of potential tariff increases on supply chain and service continuity.
- Assess the company's dependency on social networks platforms, such as for marketing purposes, and the potential needs to backup social media information and properties in the event their chosen platform stops to be readily available.
- Consider how advancements in the new administration's technique to ecological, sustainability and governance concerns may affect the company's ESG technique.
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