18 Month Federal Parental Leave

infant on a blanket with feet upThe Liberal government has introduced changes to the federal parental leave benefits program. Details of the changes were announced early November and are set to come into force on December 3, 2017.  This change is separate from the various Bill 148 changes coming down the pipe.

What’s New?

These are not additional monetary benefits, but rather, once the changes come into effect, eligible parents will be able to spread their 12 months of EI parental leave payments over 18 months. This means that the parent on leave will now be eligible to receive up to $326 a week for 18 months, as opposed to the current 55% of average weekly earnings or a max of $543 a week for 12 months. While the 18 months of  leave can be split between two parents, it must be taken all at once. Expectant mothers will also be able to start their maternity leaves 12 weeks before the baby is due.

Who will be affected?

Currently, the changes only affect employees in the federally regulated sector, which includes banking, transportation, telecommunication companies and other federally regulated businesses. We will have to wait and see if the provinces similarly change their legislation to follow suit. So far only Ontario has publicly committed to doing so.

The new 18 month leave will only be available to parents beginning their leave after the changes come into effect on December 3, 2017, and is not available to parents currently on leave.

What will this mean for employers?

Unless an employer offers a “top-up” to an employee’s income during parental leave, they are not required to continue to pay an employee’s salary during a parental leave. Employers will continue to be required to hold the employee’s job open, now for 18 months instead of 12, and to continue to pay for their extended health care benefits during the leave period.

Federally regulated workplaces will need to amend existing parental leave policies to reflect the changes. If employers offer a “top-up” to the EI parents will receive on leave, then employers will need to decide how they will deal with situations where employees opt to take the full 18 months.

Additionally, any reference to lengths of parental leaves in contracts, including Collective Agreements, will need to be updated.

Pregnant Employees

While having an employee take a parental leave can be disruptive to the workplace, employers need to be aware that pregnant employees are protected from discrimination by human rights law. Employers should take care not to make assumptions about what a pregnant woman can or cannot do. Comments, for example, about “mommy brain” are not appropriate. Employers cannot terminate an employee, or unilaterally change her working conditions, because she is pregnant. As with most things in life, good communication is key. If an employee tells you they are expecting, the first words out of your mouth should be congratulations!

Time will tell if employees will take advantage of the new 18 month leave. As the amendments do not affect the amount of money available to parents on parental leave, just length of time, it is anticipated that taking 18 months will not be affordable for many families. However, it is also anticipated that extending the leave period to 18 months will encourage more fathers to take a leave.

Sweeping Changes: Bill 148 Now Law in Ontario

Brace yourself, Ontario.  Today Bill 148 passed Third Reading and the Ontario Legislature will pass the bill into law on November 27, 2017 when it receives Royal Assent.  Most of the changes will come into force on January 1, 2018, while a small handful of the amended ESA sections may possibly come into force as early as December 3, 2017 (leave of absence related provisions).  Provisions related to equal pay come into force on April 1, 2018.

As an aside, it also appears that the high heels OHSA amendment I blogged about this morning was incorporated into the final version of Bill 148 and thus also became law this afternoon.  Happy new year to those women who can no longer be forced to wear heels if they don’t wish to.

Stay tuned for details on what this all means.  For now, feel free to review our past blog posts on highlights of Bill 148 or go straight to the full text of the Bill on the Legislative Assembly of Ontario’s website.

The following acts are amended by this bill, making this an expansive and important moment in the development of Ontario’s workplace laws:

  • Colleges Collective Bargaining Act
  • Crown Employees Collective Bargaining Act, 1993
  • Employment Protection for Foreign Nationals Act (Live-in Caregivers and Others), 2009
  • Employment Standards Act, 2000
  • Labour Relations Act, 1995
  • Occupational Health and Safety Act
  • Public Sector Dispute Resolution Act, 1997
  • Public Sector Labour Relations Transition Act, 1997
  • School Boards Collective Bargaining Act, 2014

Can Employers Require High Heels in the Workplace?

black and white sneakersNot for much longer…  Last month, Ontario Liberal MPP Cristina Martins’ bill to ban mandatory high heels in the workplace sped through the legislature.  The bill, titled the Putting Your Best Foot Forward Act, 2017 passed first reading on October 17, 2017, second reading on October 19, 2017, and has been referred to the standing committee. I was recently interviewed for CBC Radio regarding the proposed bill of banning high heels in the workplace.

Proposed Amendments to the OHSA

The Bill would make amendments to the Occupational Health and Safety Act (“OHSA”) to prohibit employers from requiring employees to wear footwear that is not appropriate to the protection required for the employee’s work, or that does not allow the employee to safely perform his or her work.

Specifically, the Bill would amend section 26 of the OHSA by adding the following:

Footwear

26(4)  An employer shall not require an employee to wear footwear that,

(a)  is not of a design, construction and material appropriate to the protection required for the employee’s work; or

(b)  does not allow the employee to safely perform his or her work.

Human Rights and Dress Codes

I think by now we all know that wearing high heels is not good for our bodies. If you had any doubt check out this Huffington Post article for some gruesome details. While it is generally a violation of the Ontario Human Rights Code to require employees to dress differently based on gender, it is no secret that many businesses in the service industry require female employees to wear sexualized outfits. This is discriminatory because they do not require the same of male employees. Check out this CBC news article for more on this.

The Ontario Human Rights Commission advises as follows with respect to gender specific dress codes:

  • Female employees should not be expected to meet more difficult requirements than male employees;
  • Female employees should not be expected to dress in a sexual way in order to attract clients; and
  • Employers should be able to prove that any sex-based differences with respect to dress codes are legitimately linked to the requirements of the job – if they are not, they are likely discriminatory.

Dress codes that require female employees, and not male employees, to wear heels are thus already likely in violation of human rights law.

What Type of Dress Code is Acceptable?

Dress code policies should be flexible and specific to business needs. They should not differentiate based on sex, gender identity, race, disability, gender expression or religious faith. Employees should be able to choose from this range of options without pressure or coercion. Under the new Bill employers will also not be able to require employees to wear footwear not appropriate to the protection required for the employee’s work, or that does not allow the employee to safely perform his or her work. If the Bill becomes law, which it is expected to, employers currently requiring employees to wear heels, male or female, will need to update their policies.

Post-Termination Bonus Entitlement

dollar sign

Photo Credit – Jimi Filipovski

Bonus entitlement is always a juicy topic. In September the Ontario Superior Court of Justice released a decision that shed some light on the issue of how entitlement to a bonus will be treated where an employer has no formal bonus policy, but a consistent past practice.

In Fulmer v. Nordstrong Equipment Limited, a wrongful dismissal case, the former employee (“Fulmer”) had received a discretionary bonus in each of his six years with the employer.  The employer attempted to argue that their “unofficial” bonus policy was that terminated employees would not be provided with any bonus pro rata or otherwise. In this case there was no employment contract, and the termination letter was silent on both entitlement to a bonus and any performance issues.

The employer argued post-termination that they discovered issues related to Fulmer’s performance, which would have disentitled him to his 2016 bonus, a period during which Fulmer was still actively at work. The judge dismissed this argument, commenting that the employer was simply seeking reasons for which to disentitle the plaintiff from his bonus.

Bonus Entitlement

The judge looked at the employer’s 2016 profitability and awarded Fulmer a $20,000.00 bonus for 2016. While Fulmer argued that he was also entitled to his 2017 bonus during the ten month notice period falling in 2017, the judge determined that because bonuses were calculated at the end of the year, and based on the employee’s positive contributions to the company throughout that year, it was not reasonable to expect a bonus for 2017. Justice Diamon made the following comments, emphasising the plaintiff’s duty to mitigate during the notice period: “I do not find it to be within the reasonable expectation of the plaintiff (charged with a duty to mitigate his losses) to be able to earn a bonus for the 2017 calendar year while he searched for alternative, comparable employment.”

Take Aways

Courts will look to what is fair and reasonable in determining entitlement to bonuses. Simply because a bonus is “discretionary” does not mean that it can be awarded in an unfair or arbitrary way. Courts will look for a bonus process, even in the absence of an official policy.

Where an employer attempts to justify an “unofficial policy” in a way that is not fair, a negative inference is likely to be made as against the employer.

This case serves as a reminder of the importance of the following:

  1. Having a bonus policy that is in writing and including details regarding how bonuses will be calculated and awarded;
  2. Following a formal bonus procedure and doing so uniformly;
  3. Making employees aware of their bonus entitlements and eligibility; and
  4. Addressing the question of bonuses in the employment agreement, including treatment of the bonus on termination.  

As in this case, courts will look to past practice, and what is fair and reasonable, to determine the quantum of a bonus where there is no official policy.

 

Reservist Leave Under the ESA

Poppies

With Remembrance Day just around the corner, this is a brief blog post on the often overlooked “Reservist Leave” provision under the Employment Standards Act (“ESA”).

The Canadian Forces has approximately 21,000 reservist members and these part-time military positions allow those who hold them to work regular jobs and live as civilians. There may consequently be members of the military reserve in your workforce, and these reservists may be called upon for military service. When they are, they are entitled to a special form of job-protection.

What is a Reservist?

A “reservist” is someone who is a member of the military reserve force, meaning that they are not active members unless they are called upon by the Canadian Forces. While they are usually required to participate in training regularly to keep up their skills, they will otherwise have other careers and live as civilians.

What is Reservist Leave?

In 2007 the Ontario government amended the Employment Standards Act to include job protection for reservists. This is an unpaid, job-protected leave.

Who Qualifies?

Under s.50.2(3) of the ESA an employee must have six months of continuous service to the employer to qualify for the leave.

An employee can take a job-protected reservist leave if he or she is deployed to a Canadian Forces operation outside of Canada, or if he or she is deployed to a Canadian Forces operation inside Canada to provide assistance in dealing with an emergency or its aftermath. In cases of deployment to an operation outside of Canada, the leave period includes pre and post-deployment activities that might be required by the Canadian Forces in connection with the operation.

How Long Must the Job be Held For?

An employer is required to hold the reservist employee’s job open for as long as the employee’s deployment lasts. There is no time-limit and an employer will not be able deem an employee terminated, or a contract frustrated, due to the length of the leave.

Return to Work

The employer is required to return the employee to the same position, or a comparable position if the position no longer exists, when the employee’s deployment is over. If the employee is being reinstated to a different position it must be of equal or greater pay to their original position.

The employer can postpone the employee’s return to work date by two weeks in order to make return to work arrangements.

Notice Requirements

An employee is required to provide their employer with reasonable written notice of the beginning of the leave and of the end of the deployment. In circumstances where it is not realistic to provide notice before the leave begins, notice must be provided as soon as possible.

Benefits During the Leave

Unlike the requirements under other types of ESA protected leaves, employers are not required to maintain benefit programs for employees who are on a reservist leave. Employees returning to work are entitled to benefit coverage as soon as their reservist leave ends, this includes during the two week wait period that an employer may impose.

Take Aways

Reservists leave requests will often come on short notice. It is important, if you have a reservist working for your company, to be prepared with respect to how to deal with such a leave. Human Resources Policies should reference reservist leave, and both employees and employers should be aware of protocol, and the employee’s rights, with respect to job-protection and entitlement to benefits during the leave.

The Time We Waste on Sexual Harassment

People at table with electronic devices

Photo credit – Rawpixel.com

Last night I attended a @GirlGeeksTO discussion about sexual harassment at work. The room held 100 diverse women in tech, largely at the earlier stages of their career and keen to continue to develop their professional relationships and skills to advance in their fields.  The #metoo movement has dramatically highlighted on all of our social feeds how prevalent the issue of sexual harassment remains. Last night was no different.

I participated on a panel that dug into what to do when faced with workplace sexual harassment.  Moderated by Melissa Nightingale of Raw Signal, my fellow panelists were HR professional Lorena Pacheco Scott at Ritual and Globe & Mail journalist Kiran Rana.  We followed a panel led by Mic Berman and Tara Rhodes of Grossman Dorland, who had kicked off the event with tooling people up for handling workplace sexual harassment.

What struck me as the most frustrating aspect of the evening was that there were a hundred ambitious young women in the room who still have to divert all this energy to the issue. Women still have to spend all this time finding champions and mentors outside their male-dominated organizations, spend time being annoyed and distracted by the sexualization of our success, sorting through whether strategically this is misconduct we should call out or should we quietly leave to not kill our career and be blacklisted too early, spending time figuring out how to deal with disappointing and unsupportive responses to complaints, and analysing whether this comment, physical interaction or event is sexual harassment directed at me or just a third party act that got me caught in the cross-fire.

All of this leaves women with no option but to be excellent performers every day, to protect against the reality of sexual harassment that otherwise devalues women in the workplace. Do we still really have to earn our way in? Are we not at the point where we can all start at the same position as the other half of the species with the assumption that we have an equal right to be there, and that advancements, raises, and success have nothing to do with sexual favours or fitting into the sexualized stereotypes of how women should be.

I was heartbroken at some of the stories of blatant sexism that is still alive and well for women entering the workforce. And I don’t mean that intangible kind of sexism where you’re not sure if the subtle comment was bad social skills, a failed attempt at humour, or a genuinely held belief that women are less valued. I mean full-out sexualizing women and seeing them as sexual objects first, and as developers, engineers, professionals second (if at all).

I’m in my mid-40s and thought I was the bridge generation between the explicit sexism women endured before me and the enlightened world enjoyed by those after me because of all the battles fought. We’re not there yet. Women still have to waste so much time thinking about this issue, thinking about how to navigate a world still full of male bosses, broculture and colleagues who see the skills and talent second.

What were all the male colleagues doing last night? Certainly not worrying about how to read and not misread workplace signals and actions all day long, nor tooling up to face aggressors, nor learning the HR and legal landscape to file complaints of sexual harassment.

There are of course many male champions in many workplaces, and there were some male allies at the event last night. Many men do stick their head out for their female colleagues. And I definitely think we’ve come a very long way since even the 1980’s – in the full course of thousands of years of women working, a few decades is quick.

But not quick enough. The economy will benefit from the brains and skills that stay engaged and fully part of developing the future’s technology, and the fundamental illogical and unfair pressure put on half the species to figure it all out needs to end.

The upside? A room full of a hundred women were making a whole bunch of lemonade out of their lemons: developing friendships, mentors, advocacy skills, learning about other workplaces and tech developments, networking, developing social & EQ skills, learning some HR law and being supported by peers. How can this not be an incredible foundation upon which to build a thriving economy that includes all genders?

Criminal Records and Employment Law

hand reaching for file folders

Photo Credit – Edu Grande on Unsplash

At SpringLaw we get a lot of questions from both employers and employees about the intersection of the criminal law and the employment relationship. Unfortunately it’s easier, and likely more common, than you might think to get somehow mixed up in a police database or wind up with a criminal record.

Many employers will require some sort of criminal record check as a condition of hiring, or will have policies with respect to their current employees disclosing criminal charges. For the most part Human Rights and Privacy laws do not protect this information.  

Types of Record Checks

In general, an applicant will need to provide the employer with appropriate consent to perform a record check. There are three basic types of record checks:

Police Criminal Record Check

This is the least intrusive level of check and will reveal criminal convictions that have not been pardoned only.

Police Information Check

This check will reveal much more extensive information, including outstanding charges, peace bonds and probation orders, absolute and conditional discharges, family court restraining orders, other court dispositions such as withdrawn charges, police occurrence reports and information about police contact such as 911 calls and police interactions that did not results in charges.

Vulnerable Sector Check  

This check will include all the information in Criminal Record Check, as well as a Police Information Check as well as information about certain sexual and violent offences for which a pardon has been granted.

Discrimination Based on Record of Offences

The Ontario Human Rights Code prohibits discrimination on the grounds of “record of offences”, which is defined as follows:

10(1)  “record of offences” means a conviction for,

(a) an offence in respect of which a pardon has been granted under the Criminal Records Act (Canada) and has not been revoked, or

(b) an offence in respect of any provincial enactment;

If an applicant has been convicted and been subsequently pardoned, it would contravene the Code to deny her or him employment, even in part because of the record of offences. However, discrimination based on any of the other information that might show up in a check is not prohibited. This means that where an applicant has a criminal record, or a pending charge for example, they can be denied employment on that basis.

Where the applicant has been convicted and pardoned the Code provides protection. As with all discrimination claims in the workplace, the employment decision at issue need not be based entirely on the ground of discrimination.  For example, an employer may deny an applicant a job for other reasons (over-qualified, lack of specific experience, conservative haircut, etc), but if an applicant could prove that at least part of the decision was based on concerns with respect to his or her record of offences (that is, had she or he been convicted and pardoned), the applicant could have a successful discrimination claim.

Not every applicant will fit with your organization, and that is perfectly legitimate, provided the lack of fit is not in any way based on the Code‘s list of grounds for discrimination.

This can be concerning news for job applicants who may have had some interaction, short of a conviction and pardon, with the justice system.

If you have questions about the intersection been criminal law and your workplace we’d be happy to chat.

 

Tips for Recruiting Online

laptop keyboard

Photo Credit – Markus Petritz on Unsplash

Gone are the days of posting job ads in the newspaper. Like most things these days job recruitment takes place primarily online. It is important for employers to know how to comply with the law in the online environment – human rights, accessibility and in some cases privacy laws will apply. In general, the laws of the jurisdiction where the business is located will govern, though this may be something to consider where recruiting widely for different offices, or where employees will be working remotely.

AODA and Accessibility

Firstly, recruiters needs to be aware of accessibility standards when drafting job ads. For business in Ontario, Ontario’s Accessibility for Ontarians with Disabilities Act (AODA) sets out notice requirements with respect to ensuring that the hiring process is accessible. These include notifying applicants of the availability of accommodations during the hiring process. It is recommended that this notice be built into the language of the job ad. In the online context, the AODA also requires that information be provided in a way that is accessible. This includes standards that speak to the design of a job ad and how the digital information is navigated.  

Human Rights

In all Canadian jurisdictions human rights standards will also apply. In Ontario, under the Human Rights Code, this means that employers cannot ask job applicants questions that would touch on a prohibited ground of discrimination. The prohibited grounds with respect to employment are:

  • Age
  • Ancestry, colour, race
  • Citizenship
  • Ethnic origin
  • Place of origin
  • Creed
  • Disability
  • Family status
  • Marital status (including single status)
  • Gender identity, gender expression
  • Record of offences
  • Sex (including pregnancy and breastfeeding)
  • Sexual orientation

Therefore, even in the online context – craigslist I’m looking at you – a job ad cannot require an applicant to disclose information about any of the above areas . Where an employer requests information about one of these grounds in order to make a hiring decision, they potentially open themselves to a discrimination claim. Where an applicant can demonstrate that they were not hired at least in part because of one of the prohibited grounds, an employer could be subject to damages.

Age

In some jurisdictions there is an exception with respect to age – age in the Ontario Human Rights Code is defined at 18 year of age and older, it is therefore permissible to ask if an applicant is 18+ and, if not at least 18 years old, to ask how old they are. It is also permitted to require applicants to be of a certain age if required by the duties of the job.  For example, where the job involves the service of alcohol an applicant will legally required to be 19+.

Privacy

While Canadian privacy laws are spotty with respect to protecting the personal information of applicants, the following are good general principles to keep in mind:

  • Individuals should be informed about why their information is being collected and how it will be used, stored and shared
  • Information should be securely stored
  • Information should not be kept for longer than is necessary
  • The information of applicants should be kept confidential from each other – for example if there is an interview sign in sheet a new sheet should be used for each applicant so that they do not see the names of those who are also interviewing

British Columbia and Alberta have the most robust privacy laws, but businesses across Canada should consult a privacy lawyer in their jurisdiction to ensure they are complying with standards around data governance.

While it may be tempting to view the web as a wild west free-for-all, it is important to remember that the law still very much applies.

Misrepresentation During the Hiring Process

Pair of glasses on laptop

Photo Credit – Jesus Kiteque on Unsplash

Employer misrepresentations, such as overstating the benefits program, in an attempt to induce a candidate to take a job can have negative legal consequences.

Negligent Misrepresentations by the Employer

Occasionally, employers might make representations about a job or benefits at the hiring stage that later turn out not to be true. Usually these will not be outright lies, but reflect assumptions, or a lack of accurate information, on the part of the hiring team.

Conversely, the candidate might ask questions that the hiring team is not fully qualified to answer. This was the situation in the British Columbia case, Feldstein v. 364 Northern Development Corporation.

In the Feldstein case, the company made a representations about their disability benefits plan to a sought after candidate. The candidate in question had cystic fibrosis, and anticipated the need for long term disability benefits at some point in the future. He inquired in detail about the company’s plan because this was a very important aspect of his employment compensation, given his condition.

The employer misrepresented the plan, and the employee was later unable to get the LTD benefits he had been assured existed. The company was found liable for the tort of negligent misrepresentation.

Negligent misrepresentation will be made out where:

1. A duty of care is established between the parties:

Employers do owe a duty of care to employees so this is easily established.

2. The representation or statement in question was untrue, inaccurate, or misleading:

The statement with respect to the benefits was inaccurate.

3. The employer acted negligently in making the representation:

The employer should not have answered a detailed question about benefits, but deferred to the benefits provider for clarity.

4. The employee reasonably relied on the negligent misrepresentation:

The candidate in this case took the job only after assurances were provided with respect to the benefits plan. The court concluded that the reliance on the information provided was reasonable.

5. The reliance resulted in damages to the employee:

The employee was unable to get the LTD benefits that he anticipated. The court concluded that he would not have accepted the job but for the inaccurate information provided.

The trial judge awarded Feldstein C$83,336.80 as compensation for lost LTD benefits and $10,000 for aggravated damages.

The British Columbia Court of Appeal upheld the damages award for loss of benefits, but overturned the $10,000 aggravated damages award.

Tips for the Hiring Process

The takeaway from this case is to be careful what you say to candidates during the hiring process. When in doubt, information should be verified before is it shared, and in some cases the hiring team may need to outsource specific questions to ensure that the information provided is accurate.

Drug Policies

Photo Credit - Get Budding on Unsplash

Photo Credit – Get Budding on Unsplash

I blogged about pot in the workplace early this past August – see my post here. The legalization of marijuana made the news again, as Ontario announced its plans with respect to how the legal sale of marijuana will be practically rolled out. Basically, the LCBO will run 150 retail outlets selling marijuana, and it will also be available to purchase online. The mom and pop marijuana dispensaries, which have always been illegal, will continue to be illegal.

Based on my own observations it seems like there are a lot more than 150 of these illegal dispensaries, and it is hard to imagine that 150 government run stores will be able to meet the clear market demand. Concerns have been raised that the black market will continue to flourish, even once these new legal stores open.   

Ontario also announced last week that, for now, legal use of recreational cannabis will be confined to private residences.  Similar to alcohol, it will not be allowed in public places or workplaces.

As I discussed in my previous post, workplace policies may need to be updated based on the changes to the law.

While drug laws in this country seem to be softening, a decision from the Supreme Court of Canada this June seems to have given drug policies more teeth. In Stewart v. Elk Valley Coal Corp the court upheld the termination of an employee for a one time breach of the employer drug and alcohol policy. In the past, a one time breach has rarely justified with cause termination.

The policy in question required employees to disclose any addictions prior to the occurrence of a drug or alcohol related incident. The policy specified that those who did disclose would be supported with treatment, and that those who did not disclose, but subsequently tested positive for drugs or alcohol could be terminated.  

In this case the employee, Stewart, who held a safety sensitive coal mining position, did not disclose his addiction, was involved in a workplace accident and subsequently tested positive for cocaine. During the investigation following the accident Stewart disclosed that he thought he was addicted to cocaine. Elk Valley terminated Stewart’s employment, in accordance with the terms of its policy.

Stewart brought a human rights complaint on the grounds that he was terminated for his addiction, constituting discrimination on the basis of disability under the Alberta Human Rights Act, RSA 2000.

The Alberta Human Rights tribunal held that Stewart was terminated for breaching the company policy, and not because of his addiction, and in the alternative, that discrimination was permissible where there was a bona fide occupational requirement.

Stewart argued that part of his addiction was a denial of his addiction, and therefore it was his addiction that prevented him from complying with the policy with respect to disclosing his addiction. On this point the Tribunal stated, and the Supreme Court agreed, that while he may have been in denial about his addiction he knew that he should not take drugs before working and had the ability to decide whether or not to do so, as well as the ability to disclose his drug use to his employer (and comply with the policy). Denial about his addiction was thus deemed irrelevant.

The Tribunal reached the decision that there was no prima facie discrimination and that the mere presence of an addiction does not establish prima facie discrimination.Stewart appealed to the Court of Queen’s Bench and to the Alberta Court of Appeal, both courts dismissed the appeal. The Supreme Court also upheld the Tribunal’s decision in an 8/1 split.

In many cases, where there is an addiction related issue in the facts with respect to a termination, employers may have felt hamstrung. This case indicates that where the policy is clear, and where the employee has the capacity to comply with the terms of the policy (addicted or not), a termination can be justified.   

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