Executive Orders and Your Compliance Landscape: What HR Leaders Need to Know

[Disclaimer: This blog post provides general information and is not legal advice. Always consult with your legal counsel for guidance specific to your organization's circumstances.]

In the ever-shifting sands of workplace compliance, few things cause more headaches for HR professionals than trying to interpret the impact of executive orders. Just when you thought you had your compliance ducks in a row, a new administration comes along and starts issuing directives faster than you can update your employee handbook.

But before you reach for the aspirin bottle, let's take a deep breath and demystify what executive orders actually are, what they mean for your organization, and how they interact with existing laws.

What Exactly Is an Executive Order?

An executive order is a signed, written, and published directive from the President of the United States that manages operations of the federal government. Think of it as the president's way of giving marching orders to federal agencies about how to enforce existing laws.

Here's the crucial part that's often misunderstood: Executive orders are not laws. While they have the force of law, they weren't passed by Congress or established by the courts. This distinction is more than just semantic—it has significant implications for your compliance programs.

Executive Orders in the Constitutional Framework

To understand executive orders properly, we need a quick constitutional refresher (no pop quiz at the end, we promise!):

Dual Federalism

The framers of the Constitution purposefully split power between federal and state governments. The 10th Amendment specifies that powers not explicitly granted to the federal government belong to the states or the people.

The Three Branches

• Executive Branch: Enforces the law (including the president who issues executive orders)
• Legislative Branch: Creates laws (Congress)
• Judicial Branch: Interprets laws (the courts)

The Supremacy Clause

Article VI of the Constitution establishes that federal law is the "supreme law of the land." Federal law can preempt state law either:

• Expressly: When it contains explicit language to that effect
• Implicitly: When preemption intent is implicit in the structure and purpose

The Key Limitations of Executive Orders

Here's what HR professionals and compliance officers need to understand about executive orders:

1. They cannot change underlying law - Executive orders can only control federal agencies and how they enforce existing laws.
2. They face higher judicial scrutiny - Because they weren't passed by Congress, they're more vulnerable to legal challenges.
3. They can be challenged in courts - When they appear to conflict with existing law, executive orders can be (and often are) challenged.
4. They cannot override federal statutes or binding court rulings - No matter how strongly worded, executive orders cannot supersede laws passed by Congress or decisions by the Supreme Court.

Real-World Example: Gender Identity and Sexual Orientation Protections

Recent executive orders have attempted to roll back certain protections for gender identity and sexual orientation in the workplace. However, this doesn't mean your compliance obligations have changed overnight.

Federal Protections Remain

• Title VII of the Civil Rights Act still protects individuals from employment discrimination based on sexual orientation and gender identity.
• The Supreme Court's landmark 2020 decision in Bostock v. Clayton County concluded that the term "sex" under Title VII provides protections for transgender and LGBTQ individuals.
• The Court explicitly stated: "An employer who fires an individual merely for being gay or transgender defies the law."

State-Level Protections

• Many states have their own explicit protections for LGBTQ employees that executive orders cannot cancel:
• Over 20 states plus Washington D.C. have explicit anti-discrimination measures covering gender identity and sexual orientation
• Some additional states interpret "sex" in their laws to include LGBTQ protections

These state-level protections remain intact regardless of federal shifts.

What This Means for Your Organization

As an HR leader or compliance officer, you might be wondering: "So what do I actually need to do about all this?". Here are some key takeaways for compliance professionals:

1. Don't make snap decisions Even when executive orders change, underlying laws often remain the same. Rushed policy adjustments often increase legal risk rather than reduce it—always partner with legal counsel before making compliance changes

2. Maintain your training programs Harassment prevention and diversity training remains a wise decision, both legally and ethically. If an employee feels discriminated against, they can still file a claim with the EEOC and receive a right to sue letter.

3. Stay informed but measured While executive orders may signal administrative policy preferences, they don't necessarily change your compliance obligations.

4. Consider both federal AND state protections Remember that your organization is subject to both federal and state laws, and state-level protections may remain in place regardless of federal changes.

4. Watch for judicial challenges Many executive orders face legal challenges. An order issued today could be enjoined (legally blocked) by courts tomorrow.

The Bottom Line

Executive orders can create confusion, but they don't necessarily alter your fundamental compliance obligations. Unless Congress changes existing law or the Supreme Court reverses prior decisions, many workplace protections remain intact despite executive orders suggesting otherwise.

The compliance landscape may be evolving, but your commitment to creating a safe, respectful work environment for all employees should remain steadfast. When in doubt, consult with legal counsel on specific issues, as local and industry-specific challenges may create unique situations for your organization.

Remember: In the complex dance between executive orders, federal laws, and state protections, the music may change, but the fundamental steps of compliance remain the same.