With the threat of inspection from U.S. Immigration and Customs Enforcement agents looming large over California agriculture, the local wine industry has been receiving pointers in preparing for possible visits from ICE.
Experts, meanwhile, point to the agency’s ongoing presence as a key driver behind a worsening wine country labor shortage.
A Thursday email from the Napa County Farm Bureau told members it had been informed that ICE inspections were taking place in Napa that day. Members were directed to a blog post from the Dickenson Peatman & Fogarty law firm of Napa and Santa Rosa, breaking down how employers should handle such inspections.
No specific ICE contacts in the Napa Valley were reported Thursday. An ICE spokesperson said late Thursday afternoon that the agency would need specific information before it could comment.
Jennifer Douglas, a labor and employment attorney with the Napa firm, co-authored the post, offering clients some explanation in the wake of California’s sanctuary state laws that took effect in January.
Under the new state laws, employers can no longer voluntarily consent to an inspection from ICE and must now demand a judicial warrant before granting the agency access to any non-public area of a worksite or to employee records.
Many times, ICE will show up looking to sift through a company’s I-9 Employment Eligibility Verification forms, providing employers with a Notice of Inspection. Once ICE gives notice, employers have 72 hours to notify employees. If an affected employee asks for a copy of the notice, employers must provide one.
“It can be very intimidating to people to have them show up with these notices,” Douglas said Thursday. “I don’t know if that’s what’s happening or not, but we’ve certainly been encouraging people to make sure that their I-9s are in order.”
Though any business may be inspected, the wine industry’s reliance on a largely immigrant workforce, particularly in the vineyards, makes it a prime target for ICE.
Grapegrowers in Napa received a similar breakdown of the new laws and how to prepare for the possibility of inspections at a seminar in May.
Attorney Erica Rosasco urged employers to have a set of protocols for when ICE comes knocking.
“Every employer should have a plan in place,” she reiterated Thursday. “Every region should have a point person that’s designated to work with ICE, who’s trained on what to look for.”
That point person needs to know the difference between a subpoena and a warrant, Rosasco said.
Prior to the sanctuary state law, ICE could write its own warrant for removal or deportation. “Now you have to have something from a court,” Rosasco said.
Employers must check to see that a judge’s signature is present and that there is a description for who or what is being called for. There should be a stripe across the case with the case number noting it as an official document.
“Since we’re a sanctuary state, we have to have that before we can allow people to come into our property and remove a person or things,” she said.
With a notice of inspection, ICE will look at a company’s I-9 forms as well as supporting documents such as a payroll register, comparing the documents to the company’s employees.
Employers will be asked to provide a list of all employees along with all the I-9s for their current and former workers. If forms are missing, employers may be fined.
Most of the time, employers have the forms, Rosasco said. The problems come from the details.
The forms include a translator section, where employers must note whether a translator was used. Employers could catch a violation for leaving it blank. Then, the employee who does the translating must list their home address. Many are reluctant, writing instead the company’s business address, Rosasco said. This leads to another violation.
“That’s where it gets expensive ... they start racking up those things,” she said.
Like Douglas, Rosasco urges employers to do their own I-9 audits to ensure their forms are all complete and error-free well ahead of any inspections.
But even as employers glean how to protect themselves and their employees from ICE action, Rosasco speculated the agency’s mere presence may continue to thin an already stretched workforce here.
On one of the agency’s recent showings here, Rosasco’s contacts told her ICE agents were making themselves apparent on Silverado Trail.
“They wanted people talking and they want to spread the message that they’re out there and doing this,” she said, “because it energizes the base for people who want that to happen.”
The result has been negative migration in California, where more people are leaving and returning to Mexico than are entering the state, while farming operations here are forced to cope with a shrinking workforce.
“That’s going to be worse this summer,” Rosasco said. “We’re just not going to have that, so we’re going to have to use more overtime, we’re going to leave grapes on the vine, the price is going to go up. Nothing good comes from that.”