GitLab

Remind me, what's an executive order?

Executive orders are regulations ordered by the president of the United States that direct government firms and officials to take particular 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 firms 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Executive orders may be rescinded, overturned by future presidents, or challenged in court, and enforcement concerns can change throughout any administration.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 results beyond executive orders. For more on mitigating threat, international organizations can take brand-new opportunities by staying active.

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

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

EO 11246 required every to include a declaration that the contractor will not victimize any staff member or candidate for employment based upon race, creed, color, or national origin.

Despite President Trump's brand-new executive order, the underlying federal anti-discrimination law stays the same 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 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 against their employees."

In addition to revoking EO 11246, the Jan. 21 executive order instructs each company of the federal government to recognize "approximately nine potential civic compliance examinations" of economic sector entities within 120 days of the order - by May 21, 2025.

The economic sector entities based on these examinations include publicly traded corporations, big nonprofits - including bar associations - large foundations, and universities whose endowments surpass US$ 1 billion.

Organizations that may be targeted should ask:

- What is my organization's risk tolerance?
- How will staff members react to the business's actions?
- How will clients and stakeholders react?
What in-house counsel needs to believe about:

Assess any federal agreements and grants

- Determine if they contain any terms or conditions associated with DEI that may contravene existing laws and regulations
Review your organization's existing DEI policies to understand your danger

- Prepare for increased analysis and prospective civil compliance examinations
Document, document, document

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

To name a few procedures, the Jan. 21 Executive Order requires the heads of federal firms to consist of specific 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 material to the government's payment decisions for functions 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 break any applicable 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 federal government in order to influence the payment or invoice of cash or home.

The certification requirement brings a potential danger of lawsuits for federal contractors under the False Claims Act. In-house legal representatives at federal specialists hence have a particular interest in ensuring their organization's policies, procedures, practices, communications and employment content, are evaluated. Assess if changes are needed to reduce the threat of lawsuits.

Executive orders targeting illegal 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 prohibited immigration and deporting illegal immigrants. The orders call for enforcement actions by federal agencies versus unlawful migration.

In-house attorneys ought to think about reviewing their organization's work eligibility confirmation process. They may also wish 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 consist of agriculture, hospitality, and other industries 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 estimates 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 establishing and ensuring constant application of the Form I-9 and E-Verify regulations the federal government uses 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 short article.

Take a look at helpful checklists of factors to consider relevant for internal attorneys on the subject of I-9 audits and worksite enforcement actions.

If an employer does not cooperate with a civil administrative warrant provided by US Immigration and Customs Enforcement (ICE), there is a threat that the agency could commence an I-9 audit if they felt an employer was blocking their need to arrest 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 the number of employees could possibly be impacted
- Review your organization's employment eligibility verification procedure
- Ensure your organization's procedure is recorded and defensible
- Implement and implement clear policies
- Monitor legal advancements, including litigation and enforcement assistance
Mitigate danger, remain active, and take new opportunities

The recent executive orders will substantially impact global services. Legal departments and internal counsel will need to assist their organizations comprehend and adapt to changes, making sure compliance or litigating when appropriate.

Many of the new administration's decisions will play out over the coming months, including new executive orders and legal challenges. The Docket will continue to keep track of advancements. Global internal attorneys should prepare for rapid advancements related to:

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 additional tariffs on imports from China. The previous 2 were both delayed by a month as the administration takes part in negotiations. Meanwhile, China has begun its own retaliatory steps on US goods. He had actually formerly revealed his intent to impose 25-percent escalating tariffs on Colombia (an action that was ultimately 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 duration for TikTok's impending restriction, sending out 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 the World Health Organization, putting an early emphasis on American energy self-reliance and away from the previous administration's international sustainability efforts.
Steps internal counsel must consider:

- Assess the impact of potential tariff boosts on supply chain and organization connection.
- Assess the company's dependence on social media platforms, such as for marketing purposes, and the possible needs to backup social networks data and possessions in case their chosen platform stops to be available.
- Consider how advancements in the brand-new administration's approach to ecological, sustainability and governance problems might impact the company's ESG method.
Disclaimer: The details in any resource in this site must not be construed as legal recommendations or as a legal viewpoint on specific realities, and ought to 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 resolved. Rather, they are planned to serve as a tool offering useful guidance and references for the busy in-house specialist and other readers.