The Law of Mandatory Flu Shot Requirements

The issue of whether United States citizens could be compelled to submit to vaccinations has been the subject of litigation since small pox was an epidemic threatening the health and well-being of the country in the early 1900s. In Jacobson v. Massachusetts, citizens challenged a Massachusetts state law requiring all persons over the age of 21 to be vaccinated against small pox. 197 U.S. 11 (1905). They argued that “a compulsory vaccination law is unreasonable, arbitrary and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best; and that the execution of such a law against one who objects to vaccination, no matter for what reason, is nothing short of an assault upon his person.” Id. at 26. The United States Supreme Court disagreed, finding “a real and substantial relation to the protection of the public health and safety” and noting that “the police power of a State must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.” Id. at 31, 25. The Court did note, however, that this power should not be exercised in such a manner as to be arbitrary or beyond what is necessary for the safety of the public. Id. at 26.

Doctor Making Insulin Or Flu VaccinationSubsequently, the Supreme Court upheld similar mandatory vaccination requirements enforced as a prerequisite for school enrollment. Zucht v. King, 260 U.S. 174, 177 (1922). Pursuant to these powers, a few states have also enacted requirements for influenza vaccinations for health care workers. See CENTERS FOR DISEASE CONTROL AND PREVENTION, STATE IMMUNIZATION LAWS FOR HEALTHCARE WORKERS AND PATIENTS (current as of December 2013), statevaccsApp/default.asp. See generally Abigale L. Ottenberg, Joel T. Wu, and Gregory A. Poland, et al., Vaccinating Health Care Workers Against Influenza: The Ethical and Legal Rationale for a Mandate, 101 Am. J. P. Health 212-216 (2011).

Mandatory flu vaccination requirements are not exclusive to state and local government directives. Two somewhat recent cases addressed whether private entities could impose upon health care workers the requirement that they receive the flu vaccine. First, in Mason Hospital v. Washington State Nurses Association, the Ninth Circuit upheld an arbitrator’s decision to strike down a hospital directive that all nurses must receive the flu vaccination. 511 F.3d 908 (9th Cir. 2007). The reason for this decision was that the requirement was not implemented in accordance with the nurses’ collective bargaining agreement. Id. Second, in Chenzira v. Cincinnati Children’s Hospital Medical Center, a receptionist objected to a hospital’s mandatory flu vaccination policy on the grounds that it violated her vegan dietary restrictions, which were as closely held to her as though they were religious. S.D. Ohio No. 1:11-CV-00917 (Dec. 27, 2012). The court denied a motion to dismiss, finding that the plaintiff had a plausible claim for religious discrimination. Id. Finally, though not a court case, the Equal Employment Opportunity Commission has stated that employees with certain disabilities or religious beliefs should be exempt from mandatory flu vaccination requirements imposed on their employees. See -48k-2009-10-21.

Therefore, it appears that there is no general constitutional right that would prohibit someone from being compelled to be vaccinated for influenza. However, the requirement must still be implemented and enforced in accordance with other rights of employees or vendors. For example, if the requirement ran afoul of a contract with the hospital or an individual’s disability or religious belief, courts would be unlikely to enforce it. Finally, some states do provide workers with the ability to opt out by law. However, it does not appear that Kentucky is counted among that number. CENTERS FOR DISEASE CONTROL AND PREVENTION, STATE IMMUNIZATION LAWS FOR HEALTHCARE WORKERS AND PATIENTS.

D. TrimbleAndrew H. Trimble is an associate in the Lexington, Kentucky office. Mr. Trimble focuses practice on general litigation, employment law and criminal defense. Mr. Trimble can be reached at (859) 231-8780, ext. 136 or

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Nuns, Firefighters and Title VII: Are Volunteers Eligible for Protection?

Volunteerism is a staple of American life. According to the Corporation for National and Community Service, 62.6 million Americans volunteered nearly 7.7 million hours in 2013, adding up to an estimated value of $173 billion. Organizations such as the Salvation Army, the Red Cross, and Habitat for Humanity depend on volunteers to serve the communities in which they live. But even beyond not-for-profit charitable organizations, for-profit businesses routinely open their doors to students and others who are willing to file, prepare mailings, or shred documents in exchange for some experience to put on their resume.

Thus, the odds are that at some point in your life – out of necessity, practicality, or for good will – you will either be a volunteer or take on volunteers in your office. But what happens when a volunteer believes that she has been discriminated against in the course of her service? Are volunteers protected by employment discrimination laws such that the organizations with which they are volunteering may be held liable for workplace discrimination? Recent law suits from volunteers have forced courts around the country – and most recently in the Sixth Circuit – to address these issues and provide clarity for volunteers and employers alike.

Title VII clearly makes it unlawful for employers to discriminate against employees because of that employee’s race, color, religion, sex or national origin. 42 U.S.C. §2000e–2(a)(1). However, the statute’s definition of “employee” (“an individual employed by an employer”) has left open the question of who the law is designed to protect. 42 U.S.C. §2000e(f). In absence of more specific direction from Congress, the United States Supreme Court found “that Congress intended to describe the conventional master-servant relationship as understood by common-law agency doctrine.” Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-323 (1992). The common law agency doctrine recognized the following thirteen factors:

  1. Employer’s control of worker;
  2. Level of skill required;
  3. The source of the tools used;
  4. The location of the work;
  5. The duration of the relationship between the parties;
  6. Whether the employer has the right to assign additional projects;
  7. Worker’s discretion over when and how long to work;
  8. Payment method;
  9. Worker’s ability to hire assistants;
  10. Whether the work is part of the regular business of the employer;
  11. Whether the employer is in business;
  12. Employee benefits; and
  13. Tax treatment.

Id. at 323–24 (citing Restatement (Second) of Agency § 220(2) (1958).

The trouble with these so-multi-ethnic volunteer group hands together showing unitycalled Darden factors – aside from the sheer number and subjectivity of the factors – is that they were designed to distinguish between employees and independent contractors.   Restatement (Second) of Agency § 220(2) (1958). As a result, they do not neatly apply to the volunteer context to help courts determine whether or not a volunteer is an employee. For example, employees are distinguished from independent contractors because the former is generally paid a salary while the latter is generally paid a flat fee via invoice. See Janette v. American Fidelity Group Limited, 298 Fed.Appx. 467, 475 (6th Cir. 2008). In contrast, volunteers are generally not paid at all.

Because the Darden factors do not easily fit the volunteer context, nearly every circuit to consider a volunteer’s suit under Title VII has applied a modified analysis called the threshold remuneration test. Juino v. Livingston Parish Fire Dist. No. 5, 717 F.3d 431, 435 (5th Cir. 2013) (noting that the Second, Fourth, Eighth, Tenth, and Eleventh Circuits have adopted the threshold-remuneration test.). Under the threshold remuneration test, courts first make a determination as to whether the volunteer received the equivalent of compensation in exchange for services rendered. See O’Connor v. Davis, 126 F.3d 112, 115-16 (2d Cir. 1997) (quoting Graves v. Women’s Professional Rodeo Association, Inc., 907 F.2d 71, 73-74 (8th Cir. 1990)) Only if this independent antecedent requirement is met, do the courts find that the volunteer’s role in the organization fairly approximates the employment relationship such that the Darden factors could be meaningfully applied. Id.

The threshold remuneration test is a sensible modification to the Darden analysis, which significantly simplifies and clarifies the analysis. In practice, the threshold remuneration test operates to exclude most traditional volunteers from Title VII protection.

However, a few years ago, the Sixth Circuit Court of Appeals (which has jurisdiction over Kentucky, Tennessee, Ohio, and Michigan) expressly rejected the threshold remuneration test. In the Bryson v. Middlefield Volunteer Fire Dep’t, Inc., 656 F.3d 348 (6th Cir. 2011), the Sixth Circuit opened the door to Title VII claims in relation to unpaid volunteers. The Court reached this conclusion on the grounds that it was bound by the Supreme Court’s directive to apply to the full common law agency test, with compensation serving as just one of the several factors to take into consideration in the analysis.

The plaintiff in Bryson was a firefighter and administrative assistant, who claimed she was offered increased benefits for sexual favors, worked in a hostile environment and was later discharged from the non-profit fire department for complaining. The Court held that several factors in the common law of agency showed volunteer firefighting as the plaintiff performed the job could be similar enough to employment to fulfill the terms of Title VII. Therefore, without applying the Darden factors, the Court remanded the case to the district court to conduct that full analysis.

This holding appears on its face to stand in stark contrast to the other circuits, and introduced a great deal of uncertainty as to the liability that employers could face from their volunteers in the work place.

However, the Sixth Circuit recently had the opportunity to bring some clarity to the volunteer context in Sister Michael Marie v. American Red Cross, 771 F.3d 344, 366 (6th Cir.2014). In Sister Michael Marie, two Catholic nuns were terminated as emergency relief volunteers from American Red Cross and the local emergency management agency. The nuns claimed that they were terminated because of their religious beliefs. As directed by Bryson, the district court had applied all of the Darden factors and determined that the nuns were not, in fact, employees so as to benefit from the protection of Title VII. The Sixth Circuit agreed, applying the Darden factors to find that the nuns were not entitled to Title VII protection because they “have not shown that they received compensation, obtained substantial benefits, completed employment-related tax documentation, were restricted in their schedule or activities, or were generally under the control of either organization through any of the other incidents of an agency relationship.” Id. at 348.

Though Sister Michael Marie follows the directives of Bryson in applying the all of the Darden factors, the manner in which the factors are applied show that the Sixth Circuit’s analysis is really not that different from the other circuits’ threshold remuneration test after all. A fair reading of the opinion reveals that the fact that the nuns did not get paid for their work significantly militated against Title VII protection. Though “method of payment” is an individual factor, financial considerations influenced several other factors as well.

Nowhere was this made more clear than in the Court’s discussion of the most important factor of the common law agency analysis – control. In addressing this factor, the Court stated that “[t]he economic reality is that when volunteers work without traditional forms of remuneration like salary and benefits, employers are generally without leverage to control that volunteer’s performance. And control is ‘[t]he crux of Darden’s common law agency test.’” Weary, 377 F.3d at 525 (quoting Darden, 503 U.S. at 323, 112 S.Ct. 1344).

Thus, as a practical matter, under the Sixth Circuit’s decision in Sister Michael Marie, an unpaid volunteer is unlikely to be able to successfully maintain an claim under Title VII for employment discrimination. However, the case provides specific direction as to when volunteers are entitled to protection and what employers can do to avoid liability to volunteers under Title VII. For more information about Title VII and how it applies to employees and employers, please contact the attorneys at McBrayer.

D. TrimbleAndrew H. Trimble is an associate in the Lexington, Kentucky office. Mr. Trimble focuses practice on general litigation, employment law and criminal defense. Mr. Trimble can be reached at (859) 231-8780, ext. 136 or

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“Too Black”: Waitress’s Claim of Color Bias Raises Novel Title VII Claim

Title VII of the 1964 Civil Rights Act prevents discrimination in employment decisions based upon an employee’s race, color, religion, sex, or national origin. Bias claims based on a claimant’s skin color are nearly unanimously predicated upon bias against ‘race’ rather than ‘color.’ Circumstances can arise, as the Fifth Circuit found, where ‘color,’ rather than ‘race,’ is a discrete type of alleged discrimination. In a novel holding, the U.S. Court of Appeals for the Fifth Circuit ruled in Etienne v. Spanish Lake Truck & Casino Plaza, LLC that a separate claim of ‘color’ can provide the necessary foundation for a claim of discrimination based on ‘race.’

Esma Etienne worked for Spanish Lake Truck & Casino Plaza as a waitress and bartender, but she was passed over for a managerial position. Spanish Lake then filled the position with a white employee, one claimed by Etienne as being less qualified for the job. The casino countered Etienne’s claim of racial bias by showing that five of the casino’s six management positions were filled by African-Americans. The Fifth Circuit, however, found that the issue of Etienne’s color, rather her race itself, played a key role in the decision to keep her from advancing. Etienne’s affidavit noted that the general manager granted responsibilities to employees based on their skin color, and that he wouldn’t permit “a dark skinned black person” to handle money. She also stated that she was told on several occasions that the manager thought she was “too black” to do various tasks at the casino. The court ultimately held that the district court was in error for granting summary judgment for the casino in finding a lack of racial bias, holding that a ‘color’ claim, despite being a novel claim under past jurisprudence, is within the “clear and unequivocal” wording of Title VII and thus permissible as a claim.

This is the first time that a ‘color’ claim under Title VII succeeds as aExpel separate and distinct claim from ‘race’ in Federal Court at the appellate level and is likely a bellwether, opening the door for a new form of Title VII claim. Employers should take this is an opportunity to review equal opportunity and antidiscrimination policies, as well as train employees thoroughly such policies and any impermissible conduct.

For more information about Title VII issues and what policies and training employers should have in place, please contact the attorneys of McBrayer, McGinnis, Leslie & Kirkland.

Ben RiddleBenjamin L. Riddle  is an associate in the Louisville, Kentucky office. Mr. Riddle is a member of the firm’s Litigation team, where he focuses his practice on employment law, commercial disputes and personal injury matters. Mr. Riddle can be reached at (502) 327-5400, ext. 305 or

This article is intended as a summary of newly enacted federal law and does not constitute legal advice.

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Employment at Will Comes with Many Exceptions

Kentucky employment law generally recognizes that most employment is “at-will” – meaning, employees serve at the pleasure of the employer, and termination of an employee does not require “just cause.” There are several circumstances, however, where laws and other factors prohibit employers from terminating an employee without a well-documented showing of cause. Employers should be aware of the circumstances under which they may not terminate an employee without just cause.

  • Employers and employees may change the at-will nature of employment through mutual agreement. An employment contract may delineate a term of employment, such as in a multi-year contract for high-level employees. Collective bargaining agreements in unionized employment settings generally contain contract provisions requiring a certain showing before employment may be terminated. There are also circumstances where an employer has led an employee to believe there is an implied contract for employment and words to that effect can be raiFired Office Workersed by an employee in a claim against the employer. If an employer has a specific policy regarding termination, the employer must follow that policy when terminating an employee. Employment at different levels of government is also generally subject to more extensive termination policies.
  • Federal and state anti-discrimination laws prevent the termination of an employee on the basis of race, color, religion, sex, national origin, age, disability, or veteran status. While there is not currently state protection of sexual orientation in Kentucky, local statutes in several cities and counties do provide some protection for lesbian, gay, bisexual and transgender employees. Employers also must make reasonable accommodations for disabled employees as well.
  • The Family and Medical Leave Act (“FMLA”) provides eligible employees with job protections through limited periods of illness or certain other situations. Employers cannot terminate an employee who is both eligible for FMLA leave and is taking time off work to deal with an FMLA-protected illness or family situation. The employer must also provide notice of the employee’s eligibility for the leave as well.
  • While many exceptions may seem obvious, some are not. The National Labor Relations Act (“NLRA”), for instance, has been interpreted by the National Labor Relations Board (“NLRB”) in a series of recent decisions to prohibit firing employees for certain critical comments made against employers on social media. Employees have certain rights with respect to their communications about the work place with other employees, even in such a public forum as social media.
  • Public policy and common law exceptions to at-will employment policies are numerous. For instance, employees cannot be fired in retaliation for reporting an employer’s violation of law to relevant authorities or for exercising a statutory right such as a filing a workers’ compensation claim.

As seen above, “at-will” employment carries with it a host of exceptions, and employers must take careful stock of the purpose for terminating an employee and what laws or regulations apply. Whenever possible, employers should also carefully document misconduct and other determining factors applicable to the termination of an employee to best defend against a claim for wrongful termination.

For more information on at-will employment in Kentucky or other employment law matters, please contact the attorneys at McBrayer.

Ben RiddleBenjamin L. Riddle  is an associate in the Louisville, Kentucky office. Mr. Riddle is a member of the firm’s Litigation team, where he focuses his practice on employment law, commercial disputes and personal injury matters. Mr. Riddle can be reached at (502) 327-5400, ext. 305 or

This article is intended as a summary of newly enacted federal law and does not constitute legal advice.

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Making Sure Your FMLA Policy Covers the Basics

Too often, employers assume that their policies comply with the basic tenets of regulatory provisions and proceed to other details without regular, careful review. This complacency, however, is where mistakes multiply, which can result in costly outcomes. In the case of Tilley v. Kalamazoo County Road Commission, for instance, the court reiterated that failure to review basic FMLA rules and train employees accordingly could lead to an unwelcome result.

Specifically, an employee must meet three criteria before he/she is eligible for leave under Family and Medical Leave Act:

  1. The employee must have been employed by a covered employer for 12 months.
  2. The employee has worked 1,250 hours during the 12-month period before the requested leave begins.
  3. The employee works at a location where the covered employer employs fifty or more employees within a 75-mile radius of that location.

These three elements are relatively simple, but Kalamazoo highlights the importance of careful review of basic policies for mistakes. After suffering from symptoms that made him believe he was having a heart attack on August 1st, 2011, Terry Tilley was admitted to the hospital. The next day, his wife informed his employer, the Businessman Having Heart Attack IsolateKalamazoo County Road Commission, that he would be unable to return to work until August 5th. On August 9th, a representative for the road commission sent Mr. Tilley some paperwork informing him not only that he was eligible for FMLA leave, but that it was “important that we utilize Family Medical Leave Act (FMLA) leave.” He was provided an eligibility notice with a checked box that said he was eligible for FMLA. This is where the Kalamazoo County Road Commission went wrong.

Tilley had worked for the road commission for over a year, and he had worked at least 1,250 hours in that year. The Kalamazoo County Road Commission, however, did not employee fifty or more employees within a 75-mile radius of Mr. Tilley’s location. Due to the form and cover letter suggesting that he was eligible, however, the court in Tilley v. Kalamazoo County Road Commission determined that the question of whether Mr. Tilley relied on that statement to seek medical care is a question of fact for a jury to decide. The road commission may ultimately be precluded (via equitable estoppel) from denying his eligibility, and will now have to endure the time and expense of trial regardless of the jury’s ultimate verdict..

The costly lesson learned is that the most basic provisions of an FMLA policy are not only the most important, but are easily overlooked. FMLA policies should face a legal review any time there are regulatory changes. Don’t assume that the basics are covered and only review the minutiae, either – make sure all basics are accounted for and openly stated, and properly train those employees who will be administering the FMLA notice and leave.

If you need help in reviewing your FMLA policies or covering the basics in any compliance scenario, call the attorneys at McBrayer.

B. KochBrittany Blackburn Koch is an associate attorney practicing in the Lexington office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She is a native of Pikeville, Kentucky, and a graduate of Centre College and the University of Kentucky College of Law. Ms. Koch’s practice focuses primarily on family law, employment law, criminal law and civil litigation. She may be reached at or at (859) 231-8780, ext. 300.

This article is intended as a summary of federal and state law and does not constitute legal advice.

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Employees vs. Independent Contractors: The Consequences of Misclassification

The distinction between independent contractors and employees carries more burdens, consequences, and decisions than ever before. In addition to the tax consequences, there are health care compliance consequences, workers’ compensation consequences, and even intellectual property consequences. Understanding the consequences of misclassification is paramount to properly structure an employer’s workforce.

Tax Consequences

The most direct and obvious consequences of failing to properly classify workers are tax related. There are specific payroll taxes that employers partially pay — and also withhold — for employees, including FICA andunemployment.. Employers will be liable for these taxes on all workers that the IRS ultimately classifies as employees, as well as penalties for failure to deposit payroll taxes in a timely manner.

Health Care

The Patient Protection and Affordable Care Act (“ACA”) raised the stakes for employers who misclassify employees. The ACA requires employers with 50 or more full-time employees to provide affordable, employer-sponsored health insurance. Employers near this threshold may be tempted to either restructure worker duties or reclassify employees as independent contractors to avoid ACA requirements. Unless the classification of the worker is beyond reproach, however, employers should avoid this approach. The penalties for failing to comply with the ACA are high; to-wit:$166.67 per month per the number of full-time employees (after the first thirty employees). Employers should exercise great care when structuringtheir workforce to ensure compliance with the ACA.

Workers’ Compensation

Similar to the ACA considerations mentioned above, proper classification of employees is incredibly important in light of workers’ compensation insurance. The failure to provide workers’ compensation insurance can be costly, particularly if an injured worker classified as an independent contractor was actually an employee.

Copyright Interests

This issue Hand With Pen And Eyeglasses Over Agreementwas thoroughly discussed in another recent McBrayer post, but copyright interests in works created by an employee generally belong to the employer, while copyright interests in works created by an independent contractor generally do not. Employers should be very wary over signing agreements with independent contractors concerning copyrighted works, as statutory language can trump contract provisions.

If an employer has any concerns about how an employee or independent contractor is classified, the employer can request a determination from the IRS. While this determination, requested with Form SS-8, is ostensibly for the purpose of determining employment taxes and income withholding, this determination will at least provide guidance as to what side of the line workers fall. The IRS also administers the penalty implications of the ACA, so an IRS determination may definitively settle the matter in certain areas.

Employers unsure of how worker classifications apply in their circumstances should contact the attorneys at McBrayer for more information.

B. KochBrittany Blackburn Koch is an associate attorney practicing in the Lexington office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She is a native of Pikeville, Kentucky, and a graduate of Centre College and the University of Kentucky College of Law. Ms. Koch’s practice focuses primarily on family law, employment law, criminal law and civil litigation. She may be reached at or at (859) 231-8780, ext. 300.

This article is intended as a summary of  federal and state law and does not constitute legal advice.

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When is a Lunch Break Not a Lunch Break? The Sixth Circuit and Ruffin v. MotorCity Casino

Hopefully you aren’t reading this on your lunch break, hoping that you can then count the time spent as compensable work time, especially if you’re in the Sixth Circuit. In the case of Ruffin v. MotorCity Casino, the Sixth Circuit held that casino security guards tasked with monitoring their radios over their lunch break were not engaged in compensable work for purposes of the Fair Labor Standards Act. This may be less than good news for employees, but it might provide some leeway in the future as to what employers may permissibly ask employees for on their lunch breaks.

In Ruffin, the security guards at the MotorCity Casino worked five eight-hour shifts a week. Under the terms of a collective bargaining agreement, the guards received a paid, thirty-minute lunch break. They were free to socialize, make calls, eat, surf the internet and play games, among other things. They were not, however, free to leave the premsecurity guard watching video monitoring surveillance security sises, they had to monitor their two-way radios at all times during the break, and they had to respond to any emergencies that might arise in that time. They sued under the Fair Labor Standards Act, but the Sixth Circuit agreed with the district court that the applicable standard was whether the time spent was primarily for the employer’s benefit. The Sixth Circuit came to the conclusion that no reasonable jury could disagree that the employer was not the primary beneficiary of this time and affirmed the grant of summary judgment for the casino.

Employers shouldn’t, however, take this case (yet) as carte blanche to saddle employees with extra duties during periods considered to be meal breaks, however. The Department of Labor interprets the FLSA and applicable case law to suggest that “[a]n employee who is required to remain on call on the employer’s premises or so close thereto that he cannot use the time effectively for his own purposes is working while ‘‘on call’’.” (29 CFR §785.17) The DOL also states that bona fide meal periods aren’t work time, and that “[t]he employee must be completely relieved from duty for the purposes of eating regular meals. …The employee is not relieved if he is required to perform any duties, whether active or inactive, while eating.” (29 CFR §785.19) This case may ultimately affect these interpretations, but employers would be wise to follow existing interpretations until the ramifications of Ruffin become clear.

If you need help in making sense of the ramifications of this new case in light of current federal laws and regulations on wage and hour law, please contact the attorneys at McBrayer.

Brandon K. JohnsonB. Johnson is an Associate in the Louisville, KY office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Johnson practices primarily in the areas of insurance defense, employment law, and general litigation. He can be reached at or at (502) 327-5400.

This article is intended as a summary of state and federal law and does not constitute legal advice.

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