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Remind me, what's an executive order?

Executive orders are regulations ordered 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 effect how existing laws are carried out or implemented.

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

Executive orders might be rescinded, reversed by future presidents, or challenged in court, and enforcement top priorities can alter throughout any administration.

The new administration's actions have far-reaching impacts beyond executive orders. For more on mitigating risk, worldwide services can seize brand-new opportunities by remaining active.

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

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

EO 11246 needed every government agreement to include a declaration that the professional will not victimize any employee 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 the same for private-sector staff members.

However, the executive order signals that there might be altering enforcement top priorities in the brand-new administration. The order directs all federal agencies to "fight 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 rights workplace, indicating his record of "suing corporations who use '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 "approximately 9 prospective civic compliance investigations" of private sector entities within 120 days of the order - by May 21, 2025.

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

Organizations that may be targeted should ask:

- What is my company's danger tolerance?
- How will workers react to the company's actions?
- How will customers and stakeholders respond?
What internal counsel must think of:

Assess any federal contracts and grants

- Determine if they contain any terms or conditions connected to DEI that may contravene current laws and
Review your company's existing DEI policies to comprehend your threat

- Get ready for increased examination and potential civil compliance examinations
Document, document, file

- Hiring and recruitment procedures
- Performance assessments and promo decisions
- Training materials and participation records
- Any changes to DEI policies
Implications for federal specialists

Among other steps, the Jan. 21 Executive Order requires the heads of federal companies to consist of specific terms in every agreement or grant award:

- "A term needing the contractual counterparty or grant recipient to concur that its compliance in all aspects with all appropriate Federal anti-discrimination laws is material to the federal government's payment decisions for purposes 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 breach 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 receipt of money or home.

The certification requirement brings a potential threat of lawsuits for federal contractors under the False Claims Act. In-house attorneys at federal contractors hence have a specific interest in ensuring their company's policies, procedures, practices, interactions and material, are reviewed. Assess if adjustments are required to alleviate the risk of lawsuits.

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" - targeted at limiting prohibited migration and deporting prohibited immigrants. The orders call for enforcement actions by federal agencies versus illegal migration.

In-house attorneys must consider examining their company's work eligibility confirmation process. They may also desire to consider whether the company is prepared for employment reacting to an I-9 audit or a worksite enforcement action (or raid) by immigration enforcement firms.

Sectors that may be especially impacted include farming, hospitality, and other markets such as building and construction. 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 work in hospitality, representing 7.1 percent of the labor force.

In-house counsel have a crucial role to play in establishing and guaranteeing consistent application of the Form I-9 and E-Verify policies the federal government uses to implement and enforce migration law, shares John W. Mazzeo, AGC, director of I-9 and E-Verify compliance for employment Vertical Screen, Inc., in a 2024 ACC Docket short article.

Take a look at informative checklists of considerations appropriate for in-house legal representatives 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 start an I-9 audit if they felt a company was obstructing their need to jail a non-citizen employee, employment or employment in many cases acquire a criminal warrant from a judge if actions support it.

Steps internal counsel need to consider:

- Determine how many workers might possibly be affected
- Review your company's employment eligibility verification process
- Ensure your company's procedure is documented and defensible
- Implement and impose clear policies
- Monitor legal developments, including litigation and enforcement guidance
Mitigate danger, remain nimble, and take new opportunities

The current executive orders will substantially affect international companies. Legal departments and in-house counsel will require to assist their organizations comprehend and adjust to modifications, making sure compliance or litigating when proper.

Much of the new administration's decisions will play out over the coming months, employment including brand-new executive orders and legal difficulties. The Docket will continue to monitor developments. Global in-house legal representatives ought to get ready 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 2 were both delayed by a month as the administration takes part in settlements. Meanwhile, China has actually begun its own retaliatory measures on US items. He had previously revealed his intent to impose 25-percent intensifying tariffs on Colombia (an action that was ultimately not taken).
Technology and intellectual property. Among the president's very first actions was to rescind the previous administration's AI executive order. The new administration likewise extended a grace duration for TikTok's approaching ban, sending out 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 worldwide sustainability efforts.
Steps internal counsel should think about:

- Assess the impact of possible tariff boosts on supply chain and business connection.
- Assess the company's dependence on social media platforms, such as for marketing purposes, and employment the potential requirements to backup social media data and properties in case their preferred platform ceases to be available.
- Consider how developments in the new administration's approach to environmental, sustainability and governance problems may affect the organization's ESG technique.
Disclaimer: The details in any resource in this site ought to not be construed as legal suggestions or as a legal viewpoint on particular realities, and ought to not be thought about representing the views of its authors, its sponsors, and/or ACC. These resources are not planned as a definitive statement on the subject attended to. Rather, they are meant to function as a tool supplying useful guidance and recommendations for the hectic in-house professional and other readers.