Remind me, what's an executive order?

Executive orders are regulations bought by the president of the United States that direct federal government companies and authorities to take particular actions. While they are not laws, they have the force of law and effect how existing laws are executed or imposed.

Executive orders affect the firms of the executive branch and therefore do not need the approval of Congress. They must be within the president's constitutional authority and may 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Executive orders might be rescinded, reversed by future presidents, or challenged in court, and enforcement top priorities can alter throughout any administration.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 brand-new administration's actions have significant effects beyond executive orders. For more on mitigating risk, worldwide companies can take brand-new opportunities by staying nimble.

Implications of the executive orders for DEI initiatives and work 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 required every federal government contract to consist of a statement that the professional will not victimize any employee or candidate for employment based upon race, creed, color, or nationwide origin.

Despite President Trump's new executive order, the underlying federal anti-discrimination law remains unchanged for private-sector employees.

However, the executive order signals that there may be altering enforcement priorities in the new administration. The order directs all federal agencies to "fight unlawful 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, pointing to his record of "suing corporations who use 'woke' policies to discriminate against their employees."

In addition to withdrawing EO 11246, the Jan. 21 executive order advises each company of the federal government to determine "as much as nine prospective civic compliance investigations" of economic sector entities within 120 days of the order - by May 21, 2025.

The personal sector entities subject to these examinations include publicly traded corporations, large nonprofits - consisting of bar associations - large structures, and universities whose endowments exceed US$ 1 billion.

Organizations that may be targeted should ask:

- What is my company's threat tolerance?

- How will employees respond to the business's actions?

- How will customers and stakeholders react?


What in-house counsel must believe about:

Assess any federal contracts and grants

- Determine if they consist of any terms or conditions associated with DEI that may contravene existing laws and guidelines


Review your company's existing DEI policies to understand your threat

- Prepare for increased scrutiny and prospective civil compliance investigations


Document, document, file

- Hiring and recruitment processes

- Performance assessments and promotion decisions

- Training products and employment attendance records

- Any modifications to DEI policies


Implications for federal contractors

Among other procedures, 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 agree that its compliance in all respects with all relevant Federal anti-discrimination laws is product to the federal 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 violate 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 penalties on those who make incorrect claims to the government in order to affect the payment or receipt of cash or residential or commercial property.

The accreditation requirement carries a potential danger of lawsuits for federal specialists under the False Claims Act. In-house lawyers at federal professionals hence have a specific interest in ensuring their organization's policies, treatments, practices, interactions and material, are evaluated. Assess if adjustments are needed to reduce the threat of lawsuits.

Executive orders targeting prohibited immigration

President Trump's preliminary flurry of executive orders included many - such as the Jan. 20 executive order "Protecting the American People Against Invasion" - aimed at limiting prohibited immigration and deporting unlawful immigrants. The orders require enforcement actions by federal firms against prohibited immigration.

In-house legal representatives ought to think about reviewing their company's work eligibility confirmation process. They might 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 migration enforcement companies.

Sectors that may be particularly impacted include farming, 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 important function to play in establishing and ensuring constant application of the Form I-9 and E-Verify policies the federal government uses to implement and implement migration 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 helpful lists of factors to consider appropriate for internal attorneys on the subject of I-9 audits and worksite enforcement actions.

If a company does not cooperate with a civil administrative warrant presented by US Immigration and Customs Enforcement (ICE), there is a risk that the company could commence an I-9 audit if they felt an employer was obstructing their requirement to arrest a non-citizen worker, or in some cases acquire a criminal warrant from a judge if actions support it.

Steps internal counsel ought to consider:

- Determine the number of staff members might possibly be affected

- Review your company's work eligibility confirmation procedure

- Ensure your company's process is recorded and defensible

- Implement and implement clear policies

- Monitor legal advancements, consisting of lawsuits and enforcement assistance


Mitigate danger, remain active, and take new chances

The recent executive orders will substantially affect worldwide organizations. Legal departments and in-house counsel will require to help their organizations understand and adjust to changes, ensuring compliance or litigating when appropriate.

A number of the brand-new administration's choices will play out over the coming months, consisting of new executive orders and legal challenges. The Docket will continue to keep track of advancements. Global internal legal representatives must get ready for rapid developments associated with:

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 extra tariffs on imports from China. The former 2 were both postponed by a month as the administration participates in negotiations. Meanwhile, China has actually begun its own retaliatory steps on US goods. He had previously announced his intent to impose 25-percent intensifying 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 likewise extended a grace duration for TikTok's approaching ban, sending out waves throughout the technology sector, both in the United States and abroad.


Energy, climate, 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 away from the previous administration's international sustainability efforts.


Steps internal counsel should think about:

- Assess the impact of prospective tariff boosts on supply chain and service connection.

- Assess the company's dependency on social media platforms, such as for marketing purposes, and the potential needs to backup social networks information and possessions in the event their preferred platform stops to be readily available.

- Consider how advancements in the new administration's method to environmental, sustainability and governance concerns might impact the organization's ESG strategy.


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