In 2011, Georgia passed a tough immigration law, HB 87. Among other things, it requires businesses with more than 10 employees to use E-Verify, allows police to ask people about their immigration status, and punishes workers convicted of using fake ID with prison sentences of up to 15 years.

The bill took effect in July 2011. That year, University of Georgia estimated that the state suffered $140 million in agricultural losses because about half of their agricultural workers left. Peaches, blueberries and melons rotted in the fields because there was nobody to pick them. In 2012, state officials dispatched prisoners to work in the fields.

Now, President-elect Donald Trump has promised to deport every illegal immigrant in the country, even if he has to use the military to do so.

The USDA estimated in 2022 that 45% of all U.S. farmworkers are undocumented; Gov. Gavin Newsom's office estimates that in California, that number is 50%.

In wine country, Trump has the ability to create a nightmare. Grape pickers are already hard to come by at harvest season. Based on Georgia's experience, he wouldn't even have to carry out a raid to devastate a vintage. Workers might hear the news and run. "What Georgia did was minor. They just added E-Verify," said immigration attorney Davis Bae. "All the employees ran to Texas."

Bae added that even workers who are here legally might run because they may have relatives, or people living with them, who are not.

"In an I-9 review, ICE (Immigrations and Customs Enforcement) comes in and pulls all the I-9s," Bae said. "Then they say, we want to come in and talk to people. What happens? The workforce flees. They don't only flee for themselves. They flee for their families. If you have DACA, they're going to come to your house. You can't have anyone undocumented there."

However, as bad as a workforce fleeing sounds, this is not the worst nightmare. As a business owner, you face felony charges if you knowingly employ an illegal immigrant. "Knowingly" is the key word, and the word to keep in mind when preparing yourself for potential immigration raids in the near future.

Don't Ask, Don't Tell

The instinct of most employers is to protect their employees. However, you need to be very careful in how you do so. You must have deniability, Bae says.

"You have to keep deniability. You can't say that you're a sanctuary company," said Bae, a regional managing partner at Fisher & Phillips LLP in Seattle. "More than 50% of people voted for Trump. It's possible that employees—some of your own employees—might be resentful of immigrants. They might start calling ICE. I can't tell you how many cases I have of managers turning in their own companies."

That affects how you talk to your workers, starting right now. Bae suggests that you never say something to your workforce like, "If you are undocumented," because they might come to you and confess that they are.

Moreover, if an employee has already used a fake document with your company—for example, a social security number that is not actually theirs —and that employee comes in to say, "I have a different document now," you are in a bind.

"There might be people who want to be vengeful," Bae said. "But most common is people, managers, who want to help. They'll say, this guy needs help because he doesn't have documents. The manager just got the guy fired. Now you have actual knowledge that the guy doesn't have status. Managers need to know how to properly escalate a concern, and also how to keep a distance from employees. An employer, once they know someone doesn't have legal documentation at work, is obligated to fire them."

As for inspecting documents, it's not your responsibility to be an expert. Greg Wald, a partner with Squire, Patton, Boggs in San Francisco, says that the standard is "if a reasonable person looking at that document would think it was authentic."

"It can't be an ID card with a photo obviously pasted in," Wald told WineBusiness. "It is the reasonable person standard. The Department of Homeland Security does have documents that include descriptions of what a green card is supposed to look like. But this document has been redesigned a half-dozen times in the last 10-15 years. It's like a social security card. They don't all look alike. Employers are not expected to be forensic document specialists."

Bae said that employers should create a carefully-worded FAQ in the language their employees will understand.

"You have to give them information," Bae said. "If they do their own research, what are they going to find? One hundred different ways to get deported. You have to give them information. At the same time, you can't say things like, 'If you don't have status.' You have to have really careful FAQs that give you deniability. For example, you can say, 'If you have friends in this community who are undocumented, here are resources.' Give them the right information, in the right language. Do it in such a way that doesn't give you the reputation for protecting undocumented immigrants."

Bae said instructing your mid-level managers on how to deal with immigration issues is an important task to do now. "You need to give them do's and don'ts," Bae said.

And keep in mind that your managers may be the most likely people to report your company.

"Most of the raids were not tied to a criminal investigation," Wald said. "Could be a tip, or could be a random action in a certain area. If information comes up that someone might not have legal immigration status, if there's chatter in the workplace, it should not be ignored. It shouldn't be an overreaction. But it requires at least some action, some investigation, because you don't want to set up a situation down the road where someone says to an immigration officer, 'He knew.' "

Read Over Your Vendor Contracts

Many vineyards now use third-party vineyard management companies. This gives you a level of protection from culpability—but even so, you become liable if you know they are using undocumented workers. Deniability remains important, and so is the way your vineyard management contract is worded.

"If you're using labor for hire, third-party workers, they're not your employees and you're not responsible to know about their employment status," Wald said. "However, if you have knowledge that those third-party workers are at your winery and you know that they do not have legal status, then you are liable. It all comes back to knowledge."

Bae said you need an indemnity agreement in your vineyard management contract.

"You don't actually want to see their I-9s themselves because then you might be exposed to information," Bae said. "You need an agreement that if they get caught for violations, they have to report it to you as your customer. You need them to make attestations that they are checking for violations."

What Happens When ICE Shows Up

Nobody knows exactly what form ICE raids might take in the new administration. But in most cases, they are not like a movie version of an FBI raid, with a posse of black Suburbans pulling up and agents swarming out. Usually it will start with a request to review your documents, and go from there. It should go without saying that if ICE wants to see your I-9s, you must cooperate.

"What we've seen is that the government will come in and expect that you've got the right paperwork," Wald said. "If it turns out that some of your employees are not authorized to work, that doesn't mean the employer had knowledge. They might leave the workers there, because DHS might send them a notice that these individuals are not authorized to work. Or there might be a raid. They might lose their workforce with very little notice. But there might not be any fines for the employer. If the employer didn't have knowledge, and the paperwork is in order, there might not be any fines."

If arrests are made, it is often on a second visit.

"If they are going to come in and make arrests of individuals, they have to bring a warrant," Wald said. "It's not the same warrant as a law enforcement warrant issued by a judge. In this case they're interviewing people to determine legal status. If they run their names, and they're not somebody in the system as a citizen or a legal resident, they can be arrested. It's a civil administrative arrest. Once someone is determined to be a U.S. citizen, DHS (Department of Homeland Security) officers would not have the right to detain them."

Not All Publicity is Good Publicity

When ICE raids a company and arrests illegal workers, the agency doesn't keep it to itself. ICE will proclaim its success and the news may be picked up by the media. Negative publicity could lead some stores or restaurants to stop selling your wines.

"If you get publicly accused, you need a PR plan," Bae said. "The news cycle is very short. You need to have someone in place. Larger employers do, but smaller employers do not."

The "Nightmare" Ending

Even if your entire workforce is here legally, remember the Georgia experience. If they learn ICE is coming to town, some might flee anyway.

"You probably need sourcing for additional labor," Bae said. "It's not easy to remove one of every 30 people from the United States. Take a class from a public high school. One of those kids, on average, is undocumented. One person out of every 30. If they do a raid to get 20 employees, they're all going to quit. For an industry like the wine industry, where quality control is important, and the speed at which it needs to be done—at the wrong time—this could be devastating."

Not surprisingly, Bae and Wald suggested that employers talk to an immigration attorney now: the sooner the better, because both said their calendars are already filling up as Jan. 20 approaches.

Bae said a big advantage of discussing I-9s and contracts with an attorney is that you get attorney-client privilege. If you were to make an admission of knowledge, the attorney is legally bound to keep that confidential. "It's not expensive to talk to a lawyer about this," Bae said.

That said, the politics of deportation will change in more than one way on Jan. 20.

"Democrats usually go after employers to remove the incentive to hire the undocumented," Bae said. "This administration is more about getting rid of people, because the people that put them in office might also be the people who own the companies. But I had this happen the other day where this company was very very pro-Trump and he said, 'They're not going to come after me, but they're going to come after my company.' He might have some buyer's remorse. They need to be prepared. They need to establish a relationship with people like me. They need to do a health check on their compliance. Like, today."