Remind me, what's an executive order?

Executive orders are instructions ordered by the president of the United States that direct 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 enforced.

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

Executive orders may be rescinded, overturned by future presidents, or challenged in court, and enforcement priorities can change during any administration.

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

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

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

EO 11246 required every government agreement to include a declaration that the professional will not discriminate versus any worker or candidate 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 workers.

However, the executive order signals that there may be changing enforcement priorities in the new administration. The order directs all federal agencies to "combat prohibited private-sector DEI choices, requireds, policies, programs, and activities."

In December 2024, President-elect Trump tapped Harmeet K. Dhillon to lead the Justice Department's civil rights workplace, pointing to his record of "taking legal action against corporations who use 'woke' policies to victimize their workers."

In addition to withdrawing EO 11246, the Jan. 21 executive order advises each agency of the federal government to identify "up to nine possible civic compliance investigations" of private 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 go beyond US$ 1 billion.

Organizations that may be targeted should ask:

- What is my organization's danger tolerance?

- How will workers respond to the company's actions?

- How will customers and stakeholders react?


What internal counsel ought to consider:

Assess any federal contracts and grants

- Determine if they contain any terms or conditions associated with DEI that might contrast with present laws and guidelines


Review your organization's existing DEI policies to comprehend your risk

- Prepare for increased analysis and potential civil compliance investigations


Document, file, file

- Hiring and recruitment processes

- Performance examinations and promo decisions

- Training materials and participation records

- Any changes to DEI policies


Implications for federal contractors

Among other steps, 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 legal counterparty or grant recipient to concur that its compliance in all respects with all applicable Federal anti-discrimination laws is material to the federal government's payment choices for purposes of section 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 breach any suitable 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 penalties on those who make false claims to the government in order to influence the payment or invoice of cash or property.

The accreditation requirement carries a possible risk of lawsuits for federal specialists under the False Claims Act. In-house attorneys at federal professionals hence have a specific interest in ensuring their company's policies, treatments, practices, communications and material, are examined. Assess if changes are required to mitigate the threat of lawsuits.

Executive orders targeting unlawful migration

President Trump's initial flurry of executive orders consisted of numerous - such as the Jan. 20 executive order "Protecting the American People Against Invasion" - focused on restricting illegal immigration and deporting prohibited immigrants. The orders require enforcement actions by federal companies versus illegal migration.

In-house legal representatives ought to consider reviewing their company's employment eligibility confirmation procedure. They might likewise want to think about whether the organization is gotten ready for responding to an I-9 audit or a worksite enforcement action (or raid) by immigration enforcement firms.

Sectors that may be especially impacted consist of farming, hospitality, and other industries 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 operate in hospitality, representing 7.1 percent of the labor force.

In-house counsel have an important role to play in establishing and ensuring consistent application of the Form I-9 and E-Verify guidelines the federal government utilizes to execute 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 post.

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

If a company does not work together with a civil administrative warrant provided by US Immigration and Customs Enforcement (ICE), there is a threat that the company might commence an I-9 audit if they felt a company was blocking their need to arrest a non-citizen worker, or sometimes obtain a criminal warrant from a judge if actions support it.

Steps in-house counsel should consider:

- Determine how numerous staff members might possibly be affected

- Review your company's employment eligibility confirmation procedure

- Ensure your company's process is documented and defensible

- Implement and implement clear policies

- Monitor legal advancements, including litigation and enforcement guidance


Mitigate threat, stay active, and seize new opportunities

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

Much 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 internal 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 former 2 were both postponed by a month as the administration engages in settlements. Meanwhile, China has started its own vindictive procedures on US items. He had previously announced 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 very first actions was to rescind the previous administration's AI executive order. The 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 the World Health Organization, putting an early emphasis on American energy self-reliance and away from the previous administration's global sustainability efforts.


Steps in-house counsel ought to think about:

- Assess the impact of possible tariff boosts on supply chain and business continuity.

- Assess the organization's dependence on social networks platforms, such as for marketing purposes, and the possible needs to backup social media information and possessions in case their preferred platform stops to be offered.

- Consider how advancements in the new administration's technique to environmental, sustainability and governance issues may affect the company's ESG method.


Disclaimer: The information in any resource in this site ought to not be construed as legal advice or as a legal viewpoint on particular truths, and must not be thought about representing the views of its authors, employment its sponsors, and/or ACC. These resources are not planned as a conclusive statement on the subject attended to. Rather, they are intended to function as a tool supplying practical assistance and references for the busy internal specialist and other readers.