Tag Archives: ADA

EEOC Increases Fines 150 Percent for Employers Violating Notice Posting Requirements

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Written By ESR News Blog Editor Thomas Ahearn

The U.S. Equal Employment Opportunity Commission (EEOC) has announced in a final rule published in the Federal Register a 150 percent increase to the monetary fine for employers who fail to follow notice-posting requirements for Title VII of the Civil Rights Act of 1964 (Title VII), the Americans with Disabilities Act (ADA), and the Genetic Information Non-Discrimination Act (GINA). Accordingly, the EEOC is adjusting the maximum penalty per violation from $210 to $525. This final rule is effective July 5, 2016. Continue reading

Safe Hiring Expert to Present Session at HR West 2012 Conference on Laws Regulating Employment Screening

To help employers examine their background screening process against state and federal laws to ensure legal compliance, safe hiring expert Attorney Lester Rosen, CEO of San Francisco-area based background check firm Employment Screening Resources (ESR), will present the session ‘Extreme Caution Advised: Dealing With Federal and State Laws Regulating Pre-employment Screening and Safe Hiring,’ at the HR West 2012 Conference on Tuesday April 24, 2012 from 11:00 a.m. to 12:15 p.m. PST in the South San Francisco Conference Center. For more information, visit: http://www.hrwest.org/?q=content/407-extreme-caution-advised-dealing-federal-and-state-laws-regulating-pre-employment. To obtain the session in a PDF format after the conference, visit http://www.esrcheck.com/HRWest.

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Discrimination and Disparate Impact of High School Diploma Requirement for Learning Disabled Discussed in EEOC Letter

The U.S. Equal Employment Opportunity Commission (EEOC) Office of Legal Counsel recently wrote an informal discussion letter in response to an inquiry from a member of the public asking whether the Americans with Disabilities Act (ADA), as amended by the ADA Amendments Act (ADAAA) of 2008, prohibited a state from requiring students with learning disabilities to take “Gateway tests” or “end-of-course assessments” in order to receive their full high school diplomas. This letter, which is intended to provide an informal discussion of the issue and does not constitute official EEOC opinion, is at: http://www.eeoc.gov/eeoc/foia/letters/2011/ada_qualification_standards.html. Continue reading

Court Finds One Strike Rule Drug Test Policy for Employment Screening Does Not Violate Americans with Disabilities Act

According to a recent ruling from the 9th U.S. Circuit Court of Appeals, a hiring policy that permanently disqualifies job candidates from future employment for failing a so-called ‘one strike rule’ drug test that eliminates from consideration job applicants who test positive for drug or alcohol use during the pre-employment screening process does not violate the either Americans with Disabilities Act of 1990 (ADA) or the protection of rehabilitated drug addicts under California employment law. Continue reading

Questions about Criminal Records of Job Applicants Become More Difficult for Employers to Ask

by Lester Rosen, Employment Screening Resources (ESR) President & Thomas Ahearn, ESR News Editor

Employers have become increasingly aware of the importance of knowing if a job applicant has a criminal record since they have a legal duty to make reasonable inquiries about who they hire in order to provide a safe workplace. An employer who hires a person with a criminal record can be found liable for negligent hiring if the hiring decision results in harm and could have been avoided by a simple criminal record check. Checking criminal records demonstrates due diligence and is also an important preventative measure to protect against workplace violence.

One of the most effective tools an employer has is the use of an employment application form in the hiring process which enables employers to directly ask applicants if they have a criminal record. The advantage is that an employer can use a well worded application form to discourage applicants with something to hide while also encouraging applicants to be open and honest regarding questions about past criminal convictions.

However, the issue of whether employers can use a job application to ask about a job applicant’s criminal record is becoming more complicated. Many states, counties, and local governments have joined the “ban the box” movement removing the “box” job applicants are asked to check next to the question asking about past criminal convictions.

In addition, more employers are facing lawsuits accusing them of violating Title VII of the Civil Rights Act of 1964 by rejecting or firing qualified individuals with criminal records even when the criminal history has no bearing on the ability to perform their job. Due to these factors, questions about criminal records of job applicants are becoming much more difficult for employers to ask.

This is Trend #2 in Employment Screening Resources (ESR) Fourth Annual ‘Top Ten Trends in Background Screening’ for 2011.

Recently filed class action lawsuits alleging that questions about criminal records for employment purposes may discriminate against African-Americans and Latinos since they have higher rates of incarceration underscores the importance of employers understanding the U.S. Equal Employment Opportunity Commission (EEOC) policy regarding the use of criminal records during the pre-employment background check process. To read the policy, visit: http://www.eeoc.gov/policy/docs/convict1.html.

The EEOC Policy Statement on the Issue of Conviction Records under Title VII of the Civil Rights Act of 1964, as amended, states that “with respect to the manner in which a business necessity is established for denying an individual employment because of a conviction record” the EEOC’s underlying position is “that an employer’s policy or practice of excluding individuals from employment on the basis of their conviction records has an adverse impact on Blacks and Hispanics in light of statistics showing that they are convicted at a rate disproportionately greater than their representation in the population.” As a result, the EEOC holds “that such a policy or practice is unlawful under Title VII in the absence of a justifying business necessity.”

However, the EEOC’s revised requirements for establishing business necessity state that an employer “must show that it considered these three factors to determine whether its decision was justified by business necessity:

  • The nature and gravity of the offense or offenses;
  • The time that has passed since the conviction and/or completion of the sentence; and
  • The nature of the job held or sought.”

In addition, the EEOC “continues to hold that, where there is evidence of adverse impact, an absolute bar to employment based on the mere fact that an individual has a conviction record is unlawful under Title VII.”

According to a July 2010 report from the National League of Cities (NLC) and National Employment Law Project (NELP) – “Cities Pave the Way: Promising Reentry Policies that Promote Local Hiring of People with Criminal Records” – an increasing number of cities have decided to “ban the box” and remove questions on job applications asking about criminal records. The report features 23 cities and counties that have chosen to “ban the box” on their job applications that asks about an applicant’s criminal record, and defer the criminal background check to the final stages of the hiring process. These cities include: Baltimore, MD, Boston, MA, Chicago, IL, Jacksonville, FL, Memphis, TN, Minneapolis/St. Paul, MN, Oakland, CA, San Francisco, CA, and Seattle, WA.

Some states are enacting “ban the box” laws for questions about criminal records of job applicants on employment applications. For example, an overhaul of the Massachusetts Criminal Offender Record Information (CORI) that took effect November 4, 2010 means employers in Massachusetts can no longer be able to ask about convictions on “initial” job applications because of new legislation that prohibits employers from asking questions on initial written job applications about criminal offender record information, which includes criminal charges, arrests, and incarceration.

With more cities, counties, and even states considering the adoption of the “ban the box” policy that removes questions regarding criminal records of job applicants from initial job applications, employers should revisit their policies on using criminal records during employment background checks to remain compliant with federal, state, and local laws.

Unfortunately, many employers use language in their applications that is either to narrow, too broad, or too ambiguous. Each of these mistakes can put an employer in difficulty. Employment Screening Resources (ESR) – a leading provider of background checks accredited by National Association of Professional Background Screeners (NAPBS) – recommends employers should ensure that their job applications are legally compliant.

  • An employer may NOT ask about arrests or detentions that did not result in a conviction.
  • An employer may only consider convictions or pending cases;
  • There are certain limitations on misdemeanors, crimes that have been sealed or otherwise expunged, cases where a person participated in pre-trial diversion, or certain minor marijuana convictions;
  • An employer should NOT automatically deny employment due to a criminal conviction, but should consider the nature and gravity of the offense, whether it is job related, and when it occurred.

It is also recommend that the application contain language that the conviction of a crime will not automatically result in a denial of employment. Automatic disqualification could be a violation of state and federal discrimination laws. However, an employer may deny employment if the employer can establish a business-related reason for the refusal to hire.

In addition, all employment applications should have language that the application is true and correct, and that any misstatements or omission of material facts in the application will result in disqualification or termination of employment. When an applicant fails to honestly disclose the existence of a criminal conviction, the employer may be concerned about the lack of honesty involved since negative information honestly disclosed in a job interview may have no effect if the applicant otherwise has an excellent work history.

For more information on what language to use in applications, read ‘Special Report: Criminal Records, Employment and Employment Applications’ by ESR founder and President Les Rosen at http://www.esrcheck.com/articles/crime_and_employment_application.php.

So can an employer automatically exclude an applicant with a felony or criminal record? What about automated processes using a system to identify applicants with a criminal record?

The one thing that employers can be advised with some certainty is that any sort of automatic exclusion policy based upon a job applicant’s status as an ex-offender is likely to expose them to a federal or state EEOC issue. That is why nearly every employment application not only asks about past criminal records but also has a disclaimer that a criminal record will not be used automatically. The rule is clear that an employer needs a “business justification” before excluding someone based upon a past criminal record.  A blanket policy does not allow consideration of the individual, taking into account factors such as the nature and gravity of the past offense, the relevance to the job and how much time has passed. This is why ESR advises clients to approach automated software processes dealing with past criminal convictions of applicants with extreme caution.

The idea behind these rules is that an applicant should not be the subject of prejudice based on their status as opposed to who they are as a person. After all, the root of the word prejudice is to pre-judge. Of course, that does not mean a sex offender should be supervising a playground or an embezzler handling money, but only that while there may be a job opportunity for everyone, not everyone is entitled to every job. On the other hand, they need to be employed in an appropriate job, to avoid harm to the employer’s company, workers, or the public, and also to avoid lawsuits for negligent hiring.

There were numerous ESR News blogs in 2010 on the subject of criminal records of job applicants that may assist employers in navigating the issue of discrimination:

A series of recent surveys from the Society for Human Resource Management (SHRM) released revealed that approximately three out of four U.S. businesses – 73 percent – performed criminal background checks for their pre-employment screening programs, and more than 3 out of 4 candidates – 78 percent – underwent criminal background checks for positions with fiduciary and financial responsibility (handling cash, banking, and accounting).

For jobseekers with criminal pasts, a job search can be a frustrating because most employment applications will ask if they have a criminal record. Since job applicants with criminal records face greater challenges in finding employment – and since there are certain jobs where employers will justifiably not hire ex-offenders – ESR President Lester Rosen wrote the article ‘Criminal Records and Getting Back into the Workforce: Six Critical Steps for Ex-offenders Trying to Get Back into the Workforce’ to help applicants with criminal pasts get and keep work to develop a successful job history. To read the article, visit: http://www.esrcheck.com/articles/Criminal-Records-and-Getting-Back-into-the-Workforce.php. For a Spanish version of the article, visit: http://www.esrcheck.com/articles/Criminal-Records-and-Getting-Back-into-the-Workforce-SPANISH.php.

The increased focus on whether credit reports and criminal records are discriminatory was Trend #1 in the Employment Screening Resources (ESR) “Third Annual Top Ten Trends in the Pre-Employment Background Screening Industry” for 2010.

Just how much information an employer should be able to learn about the criminal past of a job applicant has become an increasingly controversial subject in the current economic downturn, when finding work is tough enough even for a job seeker with a spotless criminal record. Employment Screening Resources (ESR) has long cautioned employers that any automatic disqualification rule can be discriminatory, and that employers must first consider if there is a business justification to deny employment, taking into account the nature and gravity of the crime, the nature of the job, and the age of the offense.

In other words, employers cannot simply follow a “No one with a criminal record need apply” strategy that statistically could end up having an unfair or discriminatory impact on certain groups of people. Instead, if an applicant has a criminal record, ESR suggests that the employer determine if there is a job-related reason why that person is unfit for that job. As a general rule, ESR believes it is a best practice for employers to have written policies on important issues such as possible discrimination through the use of criminal records during background checks. Without such a policy, an employer’s actions in denying employment may become harder to defend, and having no policy also subjects an employer to claims of a discriminatory practice.

For more information on how best to avoid discrimination against employees and job applicants while conducting employment screening, visit http://www.ESRcheck.com or http://www.esrcheck.com/wordpress/tag/criminal-records/.

Employment Screening Resources (ESR) is releasing the ESR Fourth Annual ‘Top Ten Trends in Pre-Employment Background Screening’ for 2011 throughout December. This is the Second of the Top Ten Trends ESR will be tracking in 2011. To see an updated list of ESR’s ‘Top Ten Trends in Pre-Employment Background Screening’ for 2011, visit: http://www.esrcheck.com/Top-Ten-Trends-In-Background-Screening-2011.php.

Founded in 1996 in the San Francisco Bay area, Employment Screening Resources (ESR) is the company that wrote the book on background checks with ‘The Safe Hiring Manual’ by ESR founder and President Lester Rosen. Employment Screening Resources is accredited by The National Association of Professional Background Screeners (NAPBS®) Background Screening Credentialing Council (BSCC) for proving compliance with the Background Screening Agency Accreditation Program (BSAAP). ESR was the third U.S. background check firm to be ‘Safe Harbor’ Certified for data privacy protection. To learn more about ESR’s Leadership, Resources, and Solutions, visit http://www.ESRcheck.com or contact Jared Callahan, ESR Director of Client Relations, at 415.898.0044 or jcallahan@ESRcheck.com.

Sources:
http://www.eeoc.gov/policy/docs/convict1.html

Continual Employment Screening Background Checks on Current Employees Carries Risks

By Lester Rosen, Employment Screening Resources (ESR) President

In a recent blog on ‘Background Checks: Trends and Legal Issues’ on HR Toolbox by background check expert and Attorney at Law Lester Rosen, the verdict on whether or not the advantages of periodic background checks of current employees outweigh the disadvantages is: “the jury is still out.”

“To avoid bad hiring decisions, employers have increasingly turned to pre-employment background screening as a risk management tool,” writes Rosen, founder and President of Employment Screening Resources (ESR), a national background screening firm, and author of ‘The Safe Hiring Manual – The Complete Guide to Keeping Criminals, Terrorists, and Imposters Out of Your Workplace,’ the first comprehensive book on employee background checks. “No background screening program can be conducted, however, without a full understanding of a number of laws, including the Fair Credit Reporting Act (FCRA), discrimination and privacy law, the ADA (Americans with Disabilities Act), and a host of state specific rules. In addition, for employers to be able to defend themselves from allegations of negligent hiring, they must demonstrate due diligence in their hiring process.”

A new issue Rosen tackles is whether employers should conduct periodic criminal background checks of their current workforce since – although a background check may show a clean record when an employee is hired – an employee may commit a crime while employed. These ongoing searches are a way to demonstrate due diligence and to protect the workplace. Although some may argue that an employer would likely be aware of a crime committed by a current worker because that employee would miss work, many serious offenses may end up with the employee being bailed out and serving a sentence with work furlough, weekend jail, volunteer hours, or some other alternative to actual incarceration.

Even though periodic criminal background checks of current employees may have some apparent advantages, Rosen feels that “the jury is still out” on whether it is a cost-effective tool or even if the advantages outweigh the disadvantages. He offers these points to consider:

  • There is no empirical evidence that shows that periodic background checks have resulted in any advantage to employers. There are no studies to suggest on a cost-benefit basis, such checks produce results.
  • If such periodic background checks are done, the next issue is how. If databases are used, then there is the possibility of both false positives and false negative since databases available to private employers are not always complete or up to date.
  • If there is a periodic background check, it should be done ideally on the courthouse level in addition to any databases, which increases the cost.
  • There is also the consent issue with periodic background checks. Under the federal Fair Credit Reporting Act (FCRA), periodic checks must be done with consent (unless there is a specific investigation for suspicion of misconduct or wrongdoing).
  • If an employee withdraws consent for periodic background checks, the question arises if the employee can be terminated for refusal to consent. It is clear that employers have much more discretion in requiring pre-employment background checks, based upon the fact that they do not have experience with the applicant.
  • The issue becomes more complicated if the employee refusing periodic background checks is a member of a protected class since that raises potential discrimination issues.
  • In addition, a firm needs a well laid out policy in an employee manual as to how they will deal to a new criminal record that may be uncovered during a periodic background check. At a minimum, any action must be based upon some business justification, taking into account the nature and gravity of the offense, the nature of the job and how long ago it occurred. In addition, the pre-adverse action notice requirements of the FCRA would come into play.
  • There are also the cultural considerations with periodic background checks. What type of message does it send the workplace if workers are constantly suspected of criminal activity? What type of workplace stress is created if an otherwise long time and loyal employees feel they are subject to dismissal at any time for a criminal offense that may or may not bear upon their suitably a an employee?

However, Rosen states that the case may well occur where an employer is sued for a failure to perform periodic background checks on current employees, if such a failure was the proximate cause of workplace violence or other harm that arguably could have been prevented.

“The bottom-line is that this is an issue that will be worked out in court decision in the coming years,” Rosen concludes. “In the meantime, employers contemplating such periodic checks should approach it with caution and seek the advice of their attorney.”

The mission of Rosen’s blog ‘Background Checks: Trends and Legal Issues’ is to assist HR professionals in keeping up with legal developments, trends, and best practices in the critical area employment screening background checks. To learn more about background checks, visit Employment Screening Resources (ESR) at http://www.ESRcheck.com.

Founded in 1996 in the San Francisco Bay area, Employment Screening Resources (ESR) is the company that wrote the book on background checks with ‘The Safe Hiring Manual’ by ESR founder and President Lester Rosen. Employment Screening Resources is accredited by The National Association of Professional Background Screeners (NAPBS®) Background Screening Credentialing Council (BSCC) for proving compliance with the Background Screening Agency Accreditation Program (BSAAP). ESR was also the third background screening company to be ‘Safe Harbor’ certified. For more information, visit http://www.ESRcheck.com or contact Jared Callahan, ESR Director of Client Relations and Business Development, at 415.898.0044 or jcallahan@ESRcheck.com.

Challenges of Drug Testing Employees for Prescription Drugs Revealed in NY Times Article

By Thomas Ahearn, ESR News Editor

The story of a woman who lost her job after working more than two decades at an automotive plant because of a failed drug test in which she tested positive for a legally prescribed drug is revealed in a recent  New York Times article, ‘Drug Testing Poses Quandary for Employers.’

The woman’s employer for 22 years had changed its drug testing policy to test for selected prescription drugs in addition to illegal drugs, according to the Times, and the prescription medication she took for back pain — a narcotic prescribed by her doctor called hydrocodone, a drug her employer considered unsafe — showed up on her drug test.

The Times reports that the woman has sued her former employer for discrimination and invasion of privacy, while the automotive company contends employees on certain medications pose a safety hazard and its employment drug testing policy considered a prescription drug unsafe if its label included a warning against driving or operating machinery. The case is currently in court.

Increasingly, employers are struggling to find ways to address “the growing reliance of Americans on powerful prescription drugs for pain, anxiety, and other maladies” that may indicate that many of these employees report to work “with potent drugs in their systems,” reports the Times.

But issues of ‘security’ and ‘privacy’ seem to be pitted against each other, as employers try to maintain safe work environments through employment drug testing but employees cite privacy concerns and contend that they should not be fired for taking legal medications, especially if for injuries sustained on the job.

Citing data from the results of more than 500,000 drug tests, the Times reports:

  • The rate of employees testing positive for prescription opiates rose by more than 40 percent from 2005 to 2009, and by 18 percent in 2009 alone.
  • Workers tested for drugs after accidents were four times more likely to have opiates in their systems than those tested before being hired.

Because of the wide use of prescription drugs in today’s society, employers now face the challenge of setting proper employment drug testing rules about prescription drug use in the workplace to find the right balance between ‘worker security’ and ‘worker privacy’ in order to avoid violating the Americans with Disabilities Act (ADA). According to lawyers with the Equal Employment Opportunity Commission (EEOC), the ADA prohibits employers from asking employees about prescription drug use unless those employees compromise safety or cannot perform their job for medical reasons, the Times reports.

“Like background screening, effective drug testing should occur at the intersection of security and privacy,” says Attorney Lester Rosen, founder and President of Employment Screening Resources (ESR), a San Francisco area company that provides background checks and drug testing, and author of ‘The Safe Hiring Manual – The Complete Guide To Keeping Criminals, Terrorists, and Imposters Out of Your Workplace.’ “Employers need to balance a safe and secure working environment that protects workers and the general public with the legitimate concerns employees have about privacy issues.”

For more information about effective employment drug testing, visit the from Employment Screening Resources (ESR) Services page at
http://www.esrcheck.com/services/.

Employment Screening Resources (ESR) is the company that wrote the book on background checks with ‘The Safe Hiring Manual’ by ESR founder and President Lester Rosen. ESR is recognized by the National Association of Professional Background Screeners (NAPBS®) as Background Screening Credentialing Council (BSCC) Accredited for proving compliance with the Background Screening Agency Accreditation Program (BSAAP). For more information about ESR, visit http://www.ESRcheck.com.

 Source:
http://www.nytimes.com/2010/10/25/us/25drugs.html?_r=1

Use of Workers’ Compensation Records: Extreme Caution Advised

By Lester Rosen, Founder & CEO of Employment Screening Resources (ESR)

Employers have become very aware of the high costs of workers’ compensation claims. The loss to American business from both fraudulent claims and re-injury causes many employers to want to know whether a job applicant has a history of filing workers’ compensation claims.

At the same time, the Federal Americans with Disabilities Act (ADA), as well as numerous state laws, seek to protect job seekers from discrimination in hiring as a result of filing valid claims. The ADA also seeks to prevent the discrimination against workers who, although suffering from a disability, are nevertheless able to perform essential job functions as long as there are reasonable accommodations.

The bottom line is that an employer cannot request workers’ compensation records in order to have a policy of not hiring anyone who has made a claim. It is discriminatory to penalize a person who has exercised a lawful right in a lawful way and filed a valid claim.

Employers are well-advised to contact a labor lawyer before seeking to obtain workers’ compensation records. A labor law expert can assist an employer in preparing company policies, job descriptions, and forms and procedures necessary to comply with the ADA, such as a conditional job offer and medical review form.

The following brief summary describes the major points involved in obtaining and using workers’ compensation records.

1. There are wide variations between the states in the availability of these records. In a few states, the records are not available to the public, period. In other states, it can take two to three weeks to obtain a record. In some states, there are special requirements before obtaining the records, such as a notarized release. Because they are familiar with state regulations, background screening firms can assist employers in obtaining these records.

2. Under the ADA, an employer may not inquire about an applicant’s medical condition or past workers’ compensation claims until a conditional job offer has been extended, subject only to a job-related medical review. According to the U.S. Department of Justice: “Under the ADA an employer may only ask about an applicant’s disability or give a medical examination after the employer has made a job offer. The job offer can be conditioned on successfully passing a medical examination. Thus, if the person with a disability is denied the job because of information obtained from the medical examination or because of the applicant’s disability, the reason for this decision is out in the open. This procedure should limit impermissible consideration of disability.”  See: http://www.ada.gov/copsq7a.htm

3. Any questioning in a job interview should be restricted to whether the person can perform the essential job functions with, or without, reasonable accommodation. That is another good reason to have well-written job descriptions so it is clear in an interview exactly what the job entails.

4. If a candidate discloses a disability, then there should not be any follow-up. Questioning should be limited to whether that applicant can perform the job with or without reasonable accommodation.

5. If a history of filing workers’ compensation claims is found POST-OFFER, there is an argument that the offer may only be rescinded under very limited circumstances. A best practice may be to have an attorney review the matter, however, before taking an adverse action. These situations may include:

  • a. The applicant has lied about a workers’ compensation history or medical condition, usually during a medical examination;
  • b. The applicant has a history of filing false claims;
  • c. The past claims demonstrate the applicant is a safety or health threat to himself or others in the opinion of a medical expert;
  • d. The past claims demonstrate the applicant is unable to perform the essential functions of the job even with a reasonable accommodation.

6. If the applicant has lied on a medical questionnaire, or to a doctor performing a pre-employment physical, then the employer may be justified in rescinding the job offer based upon dishonesty. If an applicant has a history of multiple claims that have been denied, then an employer may be justified in rescinding the offer based upon a history of dishonest conduct. The reason is based upon an inference of fraud, not disability.

Some firms contend that a workers’ compensation record may also be used to determine the truthfulness of information on a job application on the theory that an applicant may try to hide a past employer where a claim was filed. However, even with this justification, if used, the best practice may be to review the records post-hire only.

What does all this mean? This area is complex and highly regulated by the ADA and state laws, and before attempting to utilize a search for workers’ compensation claims as part of a screening program, an employer is well-advised to consult with their attorney.  As a general rule, Employment Screening Resources (ESR) will not provide these records to an employer unless the employer has clearly indicated they understand the issues with these records, and preferably have had the matter reviewed by their attorney.

For additional information, please visit http://www.ada.gov/employmt.htm.

(Note: This article is intended for general educational purposes only, and does not constitute legal advice.)

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