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A former intern at an Aspen resort hotel has “plausibly alleged” an Aspen hotel “engaged in a bait-and-switch scheme intended to procure his labor under false pretenses” and in violation of federal labor law, according to a recommendation written by a United States magistrate judge.
Judge Kathryn A. Starnella’s 28-page recommendation was delivered Thursday in the U.S. District Court of Colorado in Denver, where Mexican national Daniel Esteban Camas López is suing Marriott International Inc. over his time interning at St. Regis Aspen Resort under the J-1 Exchange Visitor Program. St. Regis, which operates under Marriott, is not a defendant. The recommendation on how to proceed with the case will be submitted to U.S. District Court Judge Regina M. Rodriguez for review and approval.
Lopez’s lawsuit is proposed as a class action “on behalf of all similarly situated persons” who worked as J-1s under Marriott at St. Regis Aspen. Lopez came to Colorado in the fall of 2020 for a one-year program as J-1 visa intern at a hotel in Snowmass Village, with an understanding that he and other J-1 interns would benefit culturally and educationally by working locally in the culinary arts scene, the suit says.
Because the Snowmass lodge closed for renovations at the end of the winter ski season, Lopez was transferred to St. Regis in May 2021. He quit in July 2021 after “he and other workers were recruited to the St. Regis with the false promise of an ‘internship’ under the J-1 Visa internship program, when in fact the St. Regis exploited Plaintiff and the class for low-wage, menial work in direct violation of state and federal law,” the suit alleges.
A 2019 graduate of Universidad Autónoma de Queretaro in Mexico with a degree in culinary arts, Lopez was told he would get quality experience working as a J-1 intern under St. Regis’ kitchen talent in Aspen, the suit said.
In its motion to dismiss the lawsuit, Marriott’s Baltimore-based counsel argued St. Regis did not recruit Lopez, who “freely entered into the J-1 program through his sponsor organization, worked for just two months, was paid both regular and overtime wages, and later voluntarily chose to quit his at-will employment in July 2021. He makes no allegation that Marriott threatened or took any action to force him to do anything or prevent him from quitting.”
The magistrate’s recommendation was in response to the motion to dismiss the lawsuit and its six claims. Starnella recommended three of the six claims be dismissed.
Recommended for dismissal were two counts of violation of the Colorado Consumer Protection Act (one for fraudulent internships, the other human trafficking) and one count of violation of the Colorado Organized Crime Control Act.
Starnella’s recommendation noted the lawsuit didn’t meet criteria to sue under the Colorado Consumer Protection Act because it failed to show the public is negatively affected by the alleged deceptive labor practices committed by Marriott.
“He claims that the practice significantly impacts the public because it undercuts the domestic labor market in Pitkin County,” the recommendation says.
The lawsuit’s contention that “abuse of the J-1 visa internship program and trafficking of foreign interns significantly impacts the public as actual or potential workers” was problematic for the magistrate judge because “the public is allegedly harmed only as workers, not as consumers of (Marriott’s) goods or services, and (the lawsuit) has not alleged a public impact relevant to a CCPA (Colorado Consumer Protection Act) claim.”
The magistrate judge recommended dismissal of the civil violation alleged under Colorado Organized Crime Control Act because it is barred by the statute of limitations.
The counts recommended to proceed are for alleged violations of the Colorado human trafficking statute, Trafficking Victims Protection Act and Racketeer Influenced and Corrupt Organizations Act, or RICO.
The racketeering alleged against Marriott is plausible, the recommendation says, because the lawsuit showed a potential “enterprise” between Marriott and Lopez’s J-1 sponsor, Alliance Abroad Group LP, which is not a defendant in the case.
“Agents for both (Marriott) and Alliance signed (Lopez’s) Internship Plan, suggesting that the two entities ‘function as a continuing unit’ for purposes of placing J-1 interns in positions at the St. Regis Aspen,” the recommendation says.
Lopez’s internship plan set a 32-hour minimum and 40-hour maximum workweek and paid him $14 an hour and $21 per hour for overtime. Marriott also deducted $800 from his monthly paycheck to cover his rent to live in a “dilapidated house shared with other J-1 interns that worked for St. Regis,” the suit says.
Summarizing Lopez’s lawsuit’s allegations, the magistrate’s recommendation said, “In essence, the alleged scheme is this: (Marriott) works with J-1 visa sponsors to procure labor from individuals it knows are in vulnerable situations because they are foreign nationals who have traveled to the United States on a temporary basis, at their own expense. (Marriott) and the visa sponsors allegedly lure these individuals with signed promises of rewarding internships that (Marriott) has no intention of honoring. Once these individuals begin working for (Marriott), they are expected and pressured to work much longer hours than promised. Whether this pressure is explicit or not, (Marriott) knows (due to its use of and ratification of the J-1 visa process) that these interns are vulnerable, which vulnerabilities are exacerbated by required removal from the United States and financial penalties if they quit and are unable to find another host organization. … The alleged scheme relies, implicitly if not expressly, on leveraging J-1 interns’ vulnerability to obtain labor the interns did not agree to provide.”
The J-1 visa program was created through the Mutual Educational and Cultural Exchange Act of 1961. The program “provides countless opportunities for international candidates looking to travel and gain experience in the United States. The multifaceted programs enable foreign nationals to come to the U.S. to teach, study, conduct research, demonstrate special skills or receive on the job training for periods ranging from a few weeks to several years,” according to the website for the program, which is administered by the U.S. State Department.
Towards Justice, a Denver-based nonprofit legal organization, first filed the suit for Lopez in Pitkin County District Court on Oct. 20, 2023. Marriott had it transferred to the U.S. District Court of Colorado in Denver on Dec. 15, 2023. Marriott filed its motion to dismiss the lawsuit on Jan. 12, 2024.
Counsel on both sides could not be reached immediately for comment on Monday afternoon.