April 24, 2014

Women’s Economic Security Act Passed by MN House

Posted in Care of Relatives Leave, Caregiver Leave, Discrimination, Domestic violence, Employee Handbooks, Equal Pay, Family and Medical Leave Act, Family and Medical Leave Act (FMLA), Gender / Sex, Leaves of Absence, Leaves of Absence, Minnesota Parenting Leave Act, Nursing Mothers, Pregnancy, Reasonable Accommodation, Workplace Violence tagged , , , , , , , , , at 11:32 am by Tom Jacobson

The Minnesota House of Representatives on April 9, 2014 passed the Women’s Economic Security Act (HF 2536) by a 106-24 vote. The companion Senate bill (SF 2050) awaits action in the Senate.

According to the Senate’s bill summary, the law will:

  • Allow mothers to stay in the workplace by expanding family leave and providing minor, reasonable accommodations for pregnant and nursing employees;
  • Decrease the gender pay gap through the participation of women in high-wage, high-demand nontraditional work;
  • Reduce the gender pay gap through increased enforcement of equal pay laws for state contractors and by allowing employees to discuss pay inequities;
  • Address economic consequences of domestic violence, stalking, and sexual assault;
  • Enhance retirement security by considering a state retirement savings plan for those without an employer-provided option
  • Expand grandparent care-giving options.

The law would also allow employers to reduce the period of leave it may require by the amount of any paid leave or leave required by the Family and Medical Leave Act (FMLA), so that the total time off does not exceed 12 weeks. The new law would clarify that only 12 weeks of leave are required even if the employee is eligible for both state and federal leave.

What you need to know: If enacted into law, this legislation will require most Minnesota employers to take a close look at their existing policies and procedures and to make any changes necessary to bring them into compliance.

For more information about this article, please contact me at alexandriamnlaw.com or  taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2014 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

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July 19, 2013

New MN sick leave law takes effect Aug. 1 – are you ready?

Posted in Care of Relatives Leave, Caregiver Leave, Family and Medical Leave Act, Family and Medical Leave Act (FMLA), Family Leave, Leaves of Absence, Sick Leave, Sick or Injured Child Care Leave tagged , , , , , at 2:27 pm by Tom Jacobson

sick day

Effective August 1, 2013 many Minnesota employers will need to update their policies to comply with the state’s new sick leave law.

In the past Minnesota’s Sick or Injured Child Care law required employers with 21 or more employees at one site to allow employees to use personal sick leave for absences due to an illness of or injury to the employee’s child on the same terms the employee was able to use sick leave benefits for the employee’s own illness or injury. Leave under this law could be limited to the reasonable amount of time the employee’s attendance with the child was necessary.

However, on May 24, 2013 Gov. Mark Dayton signed into law a significant expansion of these leave rights.  Specifically, the new law provides that:

An employee may use personal sick leave benefits provided by the employer for absences due to an illness of or injury to the employee’s child … , adult child, spouse, sibling, parent, grandparent, or stepparent, for reasonable periods of time as the employee’s attendance may be necessary, on the same terms upon which the employee is able to use sick leave benefits for the employee’s own illness or injury.

The title of the law also changed to the Sick Leave Benefits; Care of Relatives Law.

So, effective Aug. 1, in addition to being able to use sick leave to care for a child, a Minnesota employee working for a covered employer may also use sick leave to care for these other relatives specified in the law.

The law does have limits, however.  For example, it only applies to employees who have worked at least half time for a covered employer for at least 12 months prior to their request. And, not all children are covered by the law, for only those children under 18 years of age (or under 20 if still attending secondary school) are considered children for the purposes of this law. Also, the law does not require an employer to provide sick leave at all. But, employers who do provide a sick leave benefit will need to allow it to be used for the care of the relatives listed in the law.

What you need to know:  Minnesota employers are not required to provide a sick leave benefit for their employees. However, effective Aug. 1, 2013 employers who are covered by the Care of Relatives Law (that is, employers with 21 or more employees at one site) must allow eligible employees (employees who have worked at least half time for a covered employer for at least 12 months prior to their request) to use any sick leave that is provided to care for their children and the additional relatives now listed in the law. Employers who are also covered by the federal Family and Medical Leave Act (FMLA) will have the added burden of coordinating FMLA leave and state Care of Relatives Leave when leaves of absence qualify under both laws.

For more information about this article, please contact me at alexandriamnlaw.com or  taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2013 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

May 8, 2013

Here today, gone tomorrow — intermittent leave under the FMLA

Posted in Family and Medical Leave Act, Family and Medical Leave Act (FMLA), Family Leave, Intermittent Leave, Leaves of Absence tagged , , , , , at 9:58 am by Tom Jacobson

FMLALast week I had the privilege of speaking at Lakes Country Service Cooperative to a group of  HR professionals regarding recent developments in employment law. One of the participants asked about an employee’s right to take a day off here and there to help care for a parent. The question struck a personal chord with me because I’ve recently been dealing with an ailing dad and multiple days away from the office to visit him in the hospital and to help my mom. I’m happy to report that he’s now making a good recovery.

For employers covered by the Family and Medical Leave Act, the participant’s question is whether the FMLA allows an eligible employee to take intermittent leave to care for a family member with a serious health condition. By definition, intermittent leave under the FMLA is “leave taken in separate blocks of time due to a single qualifying reason,” and it may be used for this purpose. Specifically, federal regulations provide that:

Intermittent leave may be taken for a serious health condition of a spouse, parent, son, or daughter, for the employee’s own serious health condition, or a serious injury or illness of a covered servicemember which requires treatment by a health care provider periodically, rather than for one continuous period of time, and may include leave of periods from an hour or more to several weeks. Examples of intermittent leave would include leave taken on an occasional basis for medical appointments, or leave taken several days at a time spread over a period of six months, such as for chemotherapy. A pregnant employee may take leave intermittently for prenatal examinations or for her own condition, such as for periods of severe morning sickness. An example of an employee taking leave on a reduced leave schedule is an employee who is recovering from a serious health condition and is not strong enough to work a full-time schedule.

Of course, this only applies to eligible employees of employers who are covered by the FMLA. Also, the FMLA has detailed definitions of what qualifies as a “serious health condition” or “serious injury or illness” which would trigger the right to intermittent leave, and another FMLA regulation describes how intermittent leave is to be scheduled.

What you need to know: Based on last week’s LCSC discussion, navigating through the intersecting laws that grant employees the right to time away from work continues to be a major challenge for many employers. The FMLA is only one of those laws, and intermittent leave is just one type of leave that covered employers must be prepared to provide to eligible employees.

For more information about this article, please contact me at alexandriamnlaw.com or  taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2013 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

March 6, 2013

Laws and sausage

Posted in Application Process, Background Checking, Conviction Records, Criminal History, Family and Medical Leave Act (FMLA), Hiring and Recruiting, Non-Compete Agreements tagged , , , , at 10:00 am by Tom Jacobson

Laws are like sausages. Better not to see them being made.

John Godfrey Saxe

sausage440It’s that time of year again.  The Minnesota Legislature and Congress are both in session, so that gives us a chance to see what sort of legislation is being ground up and processed into what could become the new law of the land. Here are a couple of work-related bills worth watching.

Minnesota H.F. 506: This proposed law would void non-compete agreements in all but a few limited circumstances.  Generally speaking, it would bar non-competes between employers and employees.  This law would have a tremendous impact on any employer that uses non-competes as a tool for protecting their business interests.

Minnesota H.F. 690 /Minnesota S.F. 523: These bills would amend Minn. Stat. § 364.021 by prohibiting private sector employers from considering an applicant’s criminal record or criminal history until after the applicant has been selected for an interview. This restriction already exists for public employers, but the new law would expand this to private employers as well.

H.R. 675: Introduced in the U.S. House of Representatives, this bill, dubbed the Part-Time Worker Bill of Rights Act of 2013, would amend the Family and Medical Leave act by removing from the law the requirement that before an employee is eligible for FMLA leave, s/he must work 1,250 hours during the year preceding the request for leave. Thus, if this bill were to become law, virtually any part-time employee with at least one year of service with an employer covered by the FMLA would gain FMLA leave rights.

For more information about this article, please contact me at alexandriamnlaw.com or  taj@alexandriamnlaw.com. If you have concerns about the impact of this legislation, please contact your duly elected senators and representatives.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2013 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

February 15, 2013

New FMLA poster requirement takes effect March 8

Posted in Family and Medical Leave Act (FMLA), Leaves of Absence, Posting Requirements, Posting Requirements, Uncategorized tagged , , , , , , at 7:16 am by Tom Jacobson

FMLABy March 8, 2013 employers covered by the Family and Medical Leave Act must start using the new poster prepared by the United States Department of Labor. The poster summarizes the major provisions of the FMLA, and it advises employees how to file a complaint. The DOL requires the poster to be “displayed in a conspicuous place where employees and applicants for employment can see it…. [and] at all locations even if there are no eligible employees.” Covered employers may continue to use the old version of this poster until March 7, but thereafter they must post the new notice.

Not every employer in the U.S. is covered by the FMLA. Under the FMLA, a “covered employer” is a:

  • Private-sector employer, with 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including a joint employer or successor in interest to a covered employer;
  • Public agency, including a local, state, or Federal government agency, regardless of the number of employees it employs; or
  • Public or private elementary or secondary school, regardless of the number of employees it employs.

Download the DOL’s new poster by clicking here or by visiting the DOL Wage and Hour Division’s FMLA site. For more information about this article, please contact me at alexandriamnlaw.com or  taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2013 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

December 12, 2012

Minnesota Parenting Leave Rights Expanded by Federal Court

Posted in Family and Medical Leave Act (FMLA), Family Leave, Minnesota Parenting Leave Act tagged , , , , , , , , , , at 11:25 am by Tom Jacobson

IMGIn June I noted how the Minnesota Supreme Court ruled in the case of Hansen v. Robert Half International that so long as employees disclose a qualifying reason for parenting leave, they are not required to specifically mention the Minnesota Parenting Leave Act (MPLA) to qualify for MPLA leave. A federal court has further expanded the MPLA by ruling that no specific language is needed to extend the right to reinstatement following an MPLA leave and that a reduction in force (RIF) is not a lawful reason for denying reinstatement.

The federal case, Kersten v. Old Dominion Freight Line, revolved around Anastasia Kersten’s maternity leave while working for Old Dominion.  According to court documents, Kersten and Old Dominion agreed that her leave would run from September 10 through November 1, 2009. On September 18, 2009 Kersten e-mailed an Old Dominion manager and requested to “come back on the 9th as long as that is ok with you.” The manager responded that “Nov 9 will work.” Old Dominion terminated Kersten on November 4, 2009, claiming that the termination was part of a RIF.

Under the MPLA employees may determine the length of leave, “but [the leave] may not exceed six weeks, unless agreed to by the employer.” Also, employees have a limited right to reinstatement at the end of their leave. Old Dominion argued that its agreement to extend Kersten’s leave was not an agreement to extend her right to reinstatement. Relying on the Minnesota Supreme Court’s decision in Hansen, the United States District Court for the District of Minnesota rejected that theory:

Using Hansen as a guide, the court determines that no specific language is required to extend leave; rather, a specific agreement to reinstate is reached when an employee requests a date to return to work, and an employer consents. A contrary interpretation would contravene the goal of the MPLA – to provide pregnancy leave for a term mutually agreed upon by the employer and employee.

Next, the court addressed Old Dominion’s RIF argument. Under the MPLA, an employee has no right to reinstatement if “the employer experiences a layoff and the employee would have lost a position had the employee not been on leave, pursuant to the good faith operation of a bona fide layoff and recall system, including a system under a collective bargaining agreement.” Thus, the question was whether Old Dominion’s alleged RIF was a layoff that fit within the exception. The court said no. Specifically, the court noted that in this case, Old Dominion was merely implementing a verbal standard operating procedure which did not include any right of a RIF’d employee to be recalled/reinstated; therefore, it was not a “bona fide layoff and recall system,” and it was not a legitimate reason for failing to reinstate Kersten.

What you need to know: Recent court decisions indicate that the MPLA has a very expansive reach and will be liberally interpreted to allow parenting leave. Specifically, based on the Hansen and Kersten cases:

  • Employees who are eligible for MPLA leave are not required to specifically invoke the MPLA in order to qualify for leave; so long as the eligible employee puts the employer on notice of a qualifying reason, s/he is protected by the MPLA.
  • No specific language is required to extend MPLA leave; rather, a specific agreement to reinstate is reached when an employee requests a date to return to work, and the employer consents.
  • A RIF is not a bona fide layoff and recall system that can be used to deny reinstatement to an employee on MPLA leave. 

Managing leaves of absence under the MPLA, Family and Medical Leave Act (FMLA) and/or related statutes can be extremely complicated. Therefore, it is important for employers to establish clear policies and procedures for managing these complicated leave situations and to consult with legal counsel for advice when they arise.

For more information about this article, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2012 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

June 8, 2012

No Magic Words Needed under Minnesota Parenting Leave Act, says State’s Highest Court

Posted in Family and Medical Leave Act (FMLA), Family Leave, Minnesota Parenting Leave Act tagged , , , , , at 9:24 am by Tom Jacobson

Employees are not required to specifically mention the Minnesota Parenting Leave Act (MPLA) to qualify for MPLA leave, says the Minnesota Supreme Court.

The MPLA requires Minnesota employers with 21 or more employees to grant an unpaid leave of absence to eligible employees who are natural or adoptive parents in conjunction with the birth or adoption of a child. Employers must continue to make coverage available to the employee while on leave under any group insurance policy, group subscriber contract, or health care plan for the employee and any dependents. Employees returning from MPLA leave are entitled to return to employment in the their former position or in a position of comparable duties, number of hours, and pay.

Unfortunately, the statute does not precisely say what an employee must do to request MPLA leave. This lack of precision was at the heart of the Court’s May 30, 2012 decision in the case of Hansen v. Robert Half International.

In this case Kim Hansen, who was employed by RHI, became pregnant and requested a leave of absence. In the paperwork that accompanied her request, Hansen indicated that her leave was pregnancy related, but she did not specifically mention the MPLA. RHI granted Hansen’s leave request and characterized it as a 12-week short term disability/FMLA leave.

Hansen returned to work after her approved leave ended, but she was dismissed a week later during a reduction in force. She then sued RHI, claiming, among other things, that RHI violated the MPLA by failing to reinstate her to the same or a comparable position after her maternity leave. The trial court dismissed Hansen’s MPLA claims for a number of reasons, including that Hansen had no right to reinstatement because the MPLA requires employees to request leave specifically under the MPLA, and Hansen failed to do so.

The case made its way to the Minnesota Supreme Court which analyzed the wording of the statute and compared it to the FMLA. The Court then concluded:

The record shows Hansen informed RHI of a qualifying reason for her leave. When Hansen completed her leave of absence request form, she completed section A of the form pertaining to “short-term medical disability,” “pregnancy-related disability,” or “worker’s compensation disability” leave. She completed the line entitled “[p]regnancy related disability” and stated her delivery date. In addition, [one of RHI’s managers] admitted that she was on notice that Hansen would need to leave due to Hansen’s complications related to her pregnancy. Because Hansen stated a qualifying reason for needing leave under the MPLA – childbirth – we conclude that she invoked the protections of the Act.

Although Hansen won on this issue, the Court threw out her case for other reasons.

What you need to know: Employees who are eligible for MPLA leave are not required to specifically invoke the MPLA in order to qualify for leave. So long as the eligible employee puts the employer on notice of a qualifying reason – childbirth – s/he is protected by the MPLA. Also, the Hansen case highlights the challenges that arise when MPLA, FMLA and other leaves of absence overlap. For these reasons, it is important for employers to establish clear policies and procedures for managing these complicated leave situations.

For more information about this article, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2012 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

December 8, 2011

Botched FMLA leave costs MN employer $12K

Posted in Disability, Family and Medical Leave Act (FMLA), Leaves of Absence tagged , , , , , , , at 10:12 am by Tom Jacobson

When Jim failed to return to work at Happy Trails Home* after his FMLA leave expired, Happy Trails fired him. Although this may seem like the proper course of action, this southern Minnesota health care facility ended up paying Jim $12,000.00 to settle his claims arising from Happy Trails’ botched handling of his leave.

The trouble began when Jim needed time off to recover from surgery. Happy Trails granted his request for FMLA leave, but it used a confusing FMLA designation form. The form said that eligible employees could “take up to 12 or 26 weeks of job-protected leave…”. This led Jim to believe that he had up to 26 weeks of leave. In addition, Happy Trails never clarified for Jim the number of hours, days, or weeks that would be counted against his FMLA leave entitlement.

The problems continued during Jim’s leave. He was ready, willing and able to return to work within about a month after his leave started. His doctor cleared him for light duty work, and he gave those clearances to Happy Trails. Rather than allowing Jim to return to work in a light duty capacity (as it had done for other employees), or working with him to figure out how much longer his FMLA leave would last, Happy Trails simply told him that he could not return to work until the light duty restrictions were lifted. Thus, Jim remained off work until his light duty restrictions were lifted slightly more than 12 weeks after his FMLA leave started.  Even though his restrictions were lifted, Happy Trails refused to bring him back to work.

Jim also claimed that Happy Trails’ failure to allow him to return to work in a light duty capacity violated the Americans with Disabilities Act Amendments Act. Assuming that his shoulder problems were a “disability” under the ADAAA, Jim argued that Happy Trails failed to engaged in an interactive process with him to determine a reasonable accommodation such as job restructuring, a modified work schedule, an ADAAA-based leave of absence, etc.

To make matters worse, Happy Trails changed its story after Jim challenged the company’s decision. First, Happy Trails said they were simply replacing him with someone else who had “seniority.” Then, the company suggested that his termination was related to an old scheduling issue. Eventually, Happy Trails said they let him go because he did not return to work before his leave had expired.

Fortunately for Happy Trails, Jim was able to find a new job within a few months after being discharged; this limited the company’s liability for Jim’s lost wages. Nevertheless, rather than face a lawsuit, Happy Trails agreed to pay Jim $12,000.00 to settle his claims.

Happy Trails learned the hard lesson that managing FMLA leaves is challenging. Federal laws impose a myriad of requirements that apply from start to finish, and failing to dot the “i’s” and cross the “t’s” is costly.  Happy Trails also learned how wavering explanations will damage credibility.

*Names have been changed due to confidentiality.

For more information about this article, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2011 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

September 28, 2010

HR policy development, part 3 of 3: attendance and job abandonment under the FMLA and USERRA

Posted in Absenteeism, Employee Handbooks, Family and Medical Leave Act, Job Abandonment, Leaves of Absence, Leaves of Absence, Uniformed Services Employment and Reemployment Rights Act tagged , , , , at 10:55 am by Tom Jacobson

In the first segment of this three-part series, I noted that having and following a well-written sexual harassment policy can help provide an effective defense to sexual harassment claims.  In the second installment, I pointed out how reasonable personnel policies can provide the foundation for defining employment misconduct for the purposes of a Minnesota unemployment claim.  In this final installment, the topic is leaves of absence under the Family and Medical Leave Act (FMLA) and the Uniformed Services Employment and Reemployment Rights Act (USERRA); the case is To v. US Bancorp.

In the To case, US Bank had strict “Reporting Absences” and “Job Abandonment” policies.  The policies required certain call-in procedures and return-to-work documentation.  To missed work for medical reasons and for National Guard service, but he failed to follow the bank’s call-in and reporting procedures, so the bank terminated his employment.

To sued US Bank under the FMLA and USERRA, but the court threw out his case.  With regard to To’s FMLA claims, the court noted that To had not complied with the bank’s policies for reporting absences, and “Employers who enforce such policies by firing employees on FMLA leave for noncompliance do not violate the FMLA.”

To’s USERRA claims were based in part on a portion of USERRA which states that reemployed service members “shall not be discharged from such employment, except for cause” for specified periods of time.  After noting that under USERRA, “An employer has just cause to terminate an employee who does not comply with a known company policy,” the court held that To’s failure to follow US Bank’s handbook policies gave US Bank just cause for To’s discharge.

Read together, the To, Gaustad and Cross cases all underscore the importance of developing and applying effective employment policies.  Such policies not only frame the expecations that employers may have for their employees, but they can also provide important defenses to many employment-related claims.  In sum, developing and applying effective employment policies are crucial to business success.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

August 31, 2010

Supervisor’s “Cool” FMLA comment lands FedEx in hot water

Posted in Family and Medical Leave Act, Leaves of Absence tagged , , , , , , at 7:32 am by Tom Jacobson

When FedEx employee Susan Murphy’s husband was hospitalized, she requested leave under the Family and Medical Leave Act (FMLA) to help him through his serious health condition.  After she followed the company’s procedures, FedEx granted her request.

Sadly, Murphy’s husband died a short time later.  She became distraught and needed more time off.  Her supervisor, Jeff Karnes, reminded her that her FMLA leave had ended, but he also asked how much more time she would need before returning to work.  Murphy said thirty days, and Karnes responded, “Okay, cool, not a problem.  I’ll let HR know.”  Without following any of the company’s procedures for extending her FMLA leave, Murphy continued her leave.  However, the company later denied Murphy’s request and fired her.

Murphy sued FedEx, claiming that the company interfered with her FMLA rights.  One of the key issues in the case was whether or not it was appropriate for Murphy to continue her leave without following the company’s procedures.  Ultimately, the United States Court of Appeals for the Eighth Circuit concluded that under the circumstances, a reasonable jury could find that Murphy had notified FedEx that she was requesting FMLA leave and that  it was reasonable for her to rely on FedEx’s representation (that is, Karne’s “Cool” comment) that her leave was authorized.

In other words, by responding to Murphy’s request for thirty more days with “Okay, cool, not a problem.  I’ll let HR know,” Karnes essentially excused Murphy from following established procedure and instead granted her request.

The case illustrates how important it is for employers to clearly communicate their FMLA policies to their employees.  More importantly, it points out how crucial it is for employers to train their supervisors on how to respond to FMLA requests.  When a supervisor’s poor response leads an employee to reasonably believe that his or her FMLA leave request has been granted, the employee will probably be entitled to take the time off even if the company could have denied the request.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

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