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* * *On October 11, 2022, the U.S. Department of Labor released a proposed rule to update the test for determining whether a worker is an employee under the Fair Labor Standards Act (FLSA) or an independent contractor. DOL had previously planned to release the proposed rule in October 2022. 213(a)(1), exempts any employee employed in a bona fide executive, administrative, or professional capacity or in the capacity of outside salesman (as such terms are defined and delimited from time to time by regulations of the Secretary, subject to the provisions of the [Administrative Procedure Act.]) According to DOL, the 40th percentile equated to $921 per week in 2013 and will be about $970 when the rule is . CUPA-HR filed anextension request with the department asking for an additional 90 days to evaluate the NPRMs impact on [members] research missions and collect the information needed in order to provide thoughtful and accurate input to the USDA, as well as official comments that were pulled from 2012 comments CUPA-HR submitted with the Society for Human Resource Management (SHRM). A sign stands in front of the U.S. Department of Labor. Marty Walsh, the Secretary of Labor indicated previously that the salary basis threshold is too low and as part of the review, the DOL will consider whether regular and automatic updates are needed. It need not coincide with the calendar week, but may begin on any day and at any hour of the day. Federal law currently requires overtime pay only for employees who earn an annual salary of less than $35,568, although many such workers are excluded. Updated October 25, 2022: The DOL has extended the comment period for this proposed rule until December 13, 2022. #block-googletagmanagerfooter .field { padding-bottom:0 !important; } Neither members nor non-members may reproduce such samples in any other way (e.g., to republish in a book or use for a commercial purpose) without SHRMs permission. For Long Island and Westchester County . SHRM Employment Law & Compliance Conference, Proposed Overtime Rule Now Projected to Come Out in Fall, New OSHA Guidance Clarifies Return-to-Work Expectations, Trump Suspends New H-1B Visas Through 2020, Faking COVID-19 Illness Can Have Serious Consequences, White House Takes Action Against Migrant Child Labor, How to Handle Overtime, Meal Break and Other Wage and Hour Crises. .cd-main-content p, blockquote {margin-bottom:1em;} Consulting and insurance brokerage services to be provided by Gallagher Benefit Services, Inc. and/or its affiliate Gallagher Benefit Services (Canada) Group Inc. Gallagher Benefit Services, Inc. is a licensed insurance agency that does business in California as "Gallagher Benefit Services of California Insurance Services" and in Massachusetts as "Gallagher Benefit Insurance Services." In the Biden administration's fall 2021 regulatory agenda, the Department of Labor (DOL)'s Wage and Hour Division (WHD) announced that it planned to release in April 2022 a Notice of Proposed Rulemaking (NPRM) changing criteria for the "executive, administrative and professional" exemptions from the overtime pay requirements under the Fair Labor Standards Act (FLSA). The department believes the new rule would preserve essential worker rights and provide consistency for regulated entities. We help organizations develop a comprehensive understanding of state laws and regulations to inform investment across people strategies and operations. June 27, 2022. Any information you send to Locke Lord LLP through this website is on a non-confidential and non-privileged basis. Employers should prepare now to review their workforce for exempt/non-exempt status to ensure they are compliant with the new overtime rule before the effective date is launched. In the Fall 2021 Regulatory Agenda, WHD announced their intention to move forward with the NPRM with the goal to update the salary level requirement of the section 13(a)(1) exemption [under the FLSA].. The DOL's proposed overtime rule would raise the minimum weekly pay threshold legally required to exempt salaried workers from overtime pay from $455 per week to the 40th percentile of earnings for full-time salaried workers. .manual-search-block #edit-actions--2 {order:2;} Retrieved from, The U.S. Department of Labor has again extended its timeline for proposing a new salary threshold for overtime eligibility, this time to May, according to the agencys. Require automatic future increases to the threshold. Please note that all such forms and policies should be reviewed by your legal counsel for compliance with applicable law, and should be modified to suit your organizations culture, industry, and practices. .h1 {font-family:'Merriweather';font-weight:700;} The integral factor, which considers whether the work is integral to the employers business, is also included. However, Schreter said, "I don't think they're going to give up on that.". In the February NPRM, USDA provided only 32 days for stakeholder comment submissions on the proposal. .dol-alert-status-error .alert-status-container {display:inline;font-size:1.4em;color:#e31c3d;} March 21, 2022. "Thus, it is premature to make internal changes to pay policies in anticipation of the rulemaking. While the employer allowed other employees in her position to work from home, it denied her request and shortly thereafter terminated her employment. An HR Advisor is here to help by email, live chat, or phone. In its recent spring regulatory agenda, the U.S. Department of Labor (DOL) announced its plans to issue a proposed overtime rule in October 2022. Access a collection of interactive online tools and presentations that address overtime pay requirements. A new overtime rule from the U.S. Department of Labor is likely to change some of the existing rule's white-collar exemptions. The .gov means its official. Please confirm that you want to proceed with deleting bookmark. Employers should carefully review all pay practices, exemptions from overtime, and potential FLSA liability in light of these potential changes. The DOL has considered modifying the regulations in this regard a few times in recent yearsbut hasended up leaving the current tests alone. DOL addressed the topic again in 2019 and enacted changes on January 1, 2020. One other item that may be in play is the duties test, Boonin added. The overtime salary threshold limits will increase for the following states: California To qualify for the overtime exemption, licensed physicians and surgeons must earn at least $91.07 per hour. While it is unclear whether the December NPRM will include the blacklisting language again, the abstract of the re-proposal states that the new proposed rule would be responsive to the comments received on our February 2022 proposal.. The proposed rule would provide guidance on classifying workers and seeks to combat employee misclassification. United States Department of Labor Washington, DC 20210 Re: Overtime Regulations Proposed in the Fall 2021 Regulatory Agenda Dear Acting Administrator Looman: . Ms. Moncrief requested an accommodation that would allow her to work remotely two days per week and be allowed frequent breaks while working on-site due to her pulmonary condition, which placed her at greater risk of contracting COVID-19. just days before it was set to take effect. This business model . [CDATA[/* >*/. Before the Fifth Circuit reviewed Judge Mazzants decision, the Trump administration rescinded the rule and raised the salary threshold to the current $684/week standard. proposed changes. As we previously reported in our New Year's Update for 2022, the US Department of Labor (DOL's) regulatory agenda included proposed rulemaking on the Fair Labor Standards Act (FLSA) overtime rules by April 2022. }); if($('.container-footer').length > 1){ High on the DOL's list of priorities with the proposed overtime rule will be adjusting the salary level, possibly increasing it from its current annualized rate of $35,568, noted Robert Boonin, an attorney with Dykema in Ann Arbor, Mich. "There's certainly pressure to bring the amount to as high as the $47,476 annualized amount that was enjoined by a court in 2016, but many advocates are seeking even higher levels, from $62,000 to over $80,000 per year," he said. ol{list-style-type: decimal;} The two areas of anticipated revision are to the salary level and duties tests for an employee to be exempt from overtime pay. On July 16, 2021, the U.S. District Court for the Southern District of Texas vacated the June 2012 memorandum that created the DACA policy and permanently blocked the DHS from administering the DACA program and from reimplementing DACA without compliance with the Administrative Procedure Act. Generally, the rule applies to any salaried worker who does not supervise other workers and makes less than $684 a week . The move would have entitled millions more employees to overtime pay, economists estimated, but it was halted when a federal judge. The agency ultimately proposed and, Another increase has long been on the Biden administrations agenda, but it has not said what dollar figure it has in mind. The United States Department of Labor ("DOL") is expected to propose a new salary threshold for various overtime exemptions under the Fair Labor Standards Act ("FLSA"). While this aspect of the exemption rules is not anticipated to change with the 2022 proposed rule changes, the duties test is important to remember when considering the classification of a particular role. Shortly thereafter, President Donald Trump took office and DOL abandoned its defense of the rule. The agency plans to release a new overtime threshold in May. Topics covered: Culture, executive buy-in, discrimination, training, equal pay, and more. While details of the Democratic-majority NLRBs NPRM on joint employer status are unknown, we would expect them to revise the current standard to reflect the Obama-era decision. Labor Rights. On September 24, 2019, the Department of Labor issued its final overtime rule to increase the minimum salary threshold for executive, administrative and professional exemptions from $455 per week ($23,660 annually) to $684 per week ($35,568 annually). The FLSA does not require overtime pay for work on Saturdays, Sundays, holidays, or regular days of rest, unless overtime is worked on such days. temp_style.textContent = '.ms-rtestate-field > p:first-child.is-empty.d-none, .ms-rtestate-field > .fltter .is-empty.d-none, .ZWSC-cleaned.is-empty.d-none {display:block !important;}'; The current Final Rule on Overtime has been in effect since Jan. 1, 2020, and, at the time of its implementation, made 1.3 million American workers newly eligible for overtime. Marcus G. Keegan, EEOC regional attorney for the Atlanta District Office stated, The ADA requires employers to provide reasonable accommodations to employees with disabilities to ensure those with disabilities have an equal opportunity to work to their full ability. Misclassification is a serious issue that . Existing noncompete agreements would need to be rescinded and workers informed that they are no longer in effect. Comments on the proposed rule are due by March 10, 2023. var currentUrl = window.location.href.toLowerCase(); . 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[Mr. Fendly's statement may be found in the appendix.] The U.S. Department of Labor (DOL) announced in its spring regulatory agenda in mid-June that a proposed new overtime rule will be released later this year. The following policy statements* will be included in your export: *Use of this material is governed by XpertHRs Terms and Conditions. The DOL promised to consider this feedback and may make changes to its draft rule before publishing a final version. Consistent with the presidential memorandum, the DHS published a notice of proposed rulemaking on Sept. 28, 2021, to consider all issues regarding DACA, including those identified by the district court relating to the policy's substantive legality. The DHS has appealed the district court's decision. In 2016, a proposed change would have moved the salary threshold from $455 per week ($23,660 annualized) to $913 per week ($47,476). The https:// ensures that you are connecting to the official website and that any information you provide is encrypted and transmitted securely. The federal rules governing overtime pay were established by the Fair Labor Standards Act (FLSA), which also described which workers are exempt from . The overtime rule was first slated for April 2022 and then for October 2022, so another delay would not be unusual. Last October, the DOL proposed a new independent contractor rule that would establish a version of the "economic realities test" as the standard for determining whether a worker is an employee or an independent contractor under the FLSA. In 2021, four congressional Democrats argued for a threshold in line with the historical high point of salary thresholds the 55th percentile of earning of full-time salaried workers nationwide. That would have resulted in a threshold of $82,732 by 2026, the letter said. On June 7, ICE sent its proposal to the Office of Information and Regulatory Affairs (OIRA). Tuesday, February 28, 2023. Author: Michael Cardman, XpertHR Senior Legal Editor. The new standard will revise the 2020 Trump Administrations final rule, which reversed the Obama-era NLRB decision in the 2015Browning-Ferris Industriescase and established that an entity can only be a joint employer if it actually exercises control over the essential terms and conditions of another employers employees. Please purchase a SHRM membership before saving bookmarks. The U.S. Department of Labor in September 2019 updated the federal overtime rules regarding executive, administrative, and professional workers. President Biden touted increasing the salary threshold throughout his presidential campaign. @media (max-width: 992px){.usa-js-mobile-nav--active, .usa-mobile_nav-active {overflow: auto!important;}} Many expect the DOL to increase the threshold from its current minimum salary amount of $684/weekpotentially impacting millions of employees across the United States. The two areas of anticipated revision are to the salary level and duties tests for an employee to be exempt from overtime pay. 200 Constitution AveNW Shannon Meade is executive director of Littler's Workplace Policy Institute in Washington, D.C. 2023 Littler. } div#block-eoguidanceviewheader .dol-alerts p {padding: 0;margin: 0;} Copyright 2023 HRCI. This material was created to provide accurate and reliable information on the subjects covered but should not be regarded as a complete analysis of these subjects. Washington, DC 202101-866-4-US-WAGE1-866-487-9243, Administrator Interpretations, Opinion and Ruling Letters, Resources for State and Local Governments. USA August 24 2022. .usa-footer .container {max-width:1440px!important;} Protecting vulnerable workers and persons from underserved communities from employment discrimination. The policy directed U.S. Before sharing sensitive information, make sure youre on a federal government site. Do you need help with your HR questions? CUPA-HR filedcommentsin opposition to the Trump administrations regulations on the issue andin responseto the Biden administrations RFI. -1) { The department said in the regulatory agenda that "the danger faced by health care workers continues to be of the highest concern and measures to prevent the spread of COVID-19 are still needed to protect them." More than 54,000 people submitted comments on the rule. The district court further sent the DACA policy to the DHS for further consideration. Notably absent from the spring regulatory agenda is an entry for an FLSA independent-contractor rulemaking, given that a recent blog post on the DOL's website stated that such a proposal is in the works, Plunkett said. According to the EEOCs lawsuit, Ronisha Moncrief worked for ISS Facility Services, Inc. as a health and safety manager. In the Fall 2021 Regulatory Agenda, the DOL's Wage and Hour Division (WHD) announced plans to issue an NPRM as early as April 2022 to address overtime pay requirements for certain white-collar employees.1 Since 1938, the Fair Labor Standards Act (FLSA or Act) has established the minimum wage and overtime pay ET, Presented by studioID and Express Employment Professionals, The comprehensive list of HR trends to watch in 2023, Faith groups ask SCOTUS to overturn religious accommodation precedent, Biden to appoint Julie Su as Labor Secretary, Interpreting the FMLA, one case at a time, Quiet Black History Month a warning sign, DEI pros say, Everything employers must know on employee development, Boost Employee Engagement with Small Moments of Joy at Work, Winning the War for Talent: Why On-Demand Pay Is Becoming the Must-Have Benefit to Get and Keep the Best Employees, Diversity exec Saraswati resigns amid claims she lied about her race, People arent getting the COVID booster. Unless exempt, employees covered by the Act must receive overtime pay for hours worked over 40 in a workweek at a rate not less than time and one-half their regular rates of pay. ET, Webinar More than 100 business and industry groups are urging the U.S. Department of Labor to seek public input before it releases a highly anticipated rule to update overtime pay regulations that is expected to extend time-and-a-half wages to more workers. If such an increase is proposed, it will impact millions of workers and almost certainly meet resistance in federal courts from private employers and business groups. Unless exempt, employees covered by the Act must receive overtime pay for hours worked over 40 in a workweek at a rate not less than time and one-half their regular rates of pay. The DOL review and anticipated announcement represent a quick turnaround, given the previous update to overtime rules implemented in 2019 delivered the first substantive changes enacted since 2004. .usa-footer .grid-container {padding-left: 30px!important;} Another increase has long been on the Biden administrations agenda, but it has not said what dollar figure it has in mind. This spring, the U.S. Department of Labor (DOL) is expected to announce recommended changes related to employee salary for overtime rules as part of the Fair Labor Standards Act (FLSA). In 2021, four congressional Democrats argued for a threshold in line with the historical high point of salary thresholds the 55th percentile of earning of full-time salaried workers nationwide. That would have resulted in a threshold of, Webinar The salary basis threshold was increased in 2019 from $23,660/year to $35,568/year. The Department of Labor's Wage and Hour Division is expected to propose new rules on independent contractor classification and overtime entitlement requirements in the . We also anticipate some proposed changes to the duties tests. As the current minimum salary amount is $684/week, it is expected for DOL . var currentLocation = getCookie("SHRM_Core_CurrentUser_LocationID"); There are some in the department who believe that in order to be eligible for the exemption, an employee shouldn't be involved in any type of selling, she said. On Jan. 4, the Biden administration released its long-awaitedFall 2022 Unified Agenda of Regulatory and Deregulatory Actions. "Snowy Labor Department Sign" [photograph]. Reposted with permission. } The background: The overtime rule, part of the . Agency: Department of Labor(DOL) Priority: Economically Significant RIN Status: Previously published in the Unified Agenda Agenda Stage of Rulemaking: Proposed Rule Stage Major: Yes Unfunded Mandates: Undetermined CFR Citation: 29 CFR 541 . Compete for talent by understanding how anticipated significant changes to FLSA earnings thresholds will affect your organization, Human Resources and Compensation Consulting, Prepare Now for FLSA Rule Changes Coming Soon, Affordable Housing Insurance and Consulting for Nonprofits, Business Continuity Planning and Resiliency Services, Claims Management and Third Party Administration, Compensation Consulting and Total Rewards Programs, Diversity, Equity and Inclusion (DEI) Consulting, Human Resources and Compensation Consulting Overview, Meet the Human Resource Compensation Consulting Team, Physical and Emotional Wellbeing Consulting, National Center for Civil and Human Rights, National Underground Railroad Freedom Center, Some analysts anticipate salary thresholds as high as. Then the final rule would need to take effect no sooner than 60 days after it is published in the Federal Register, assuming it is classified as a major rule. The proposed rule is intended to replace the 2021 independent contractor regulation. Rescind the 2021 Independent Contractor Rule. p.usa-alert__text {margin-bottom:0!important;} The proposal is expected to be issued in the near future. Once proposed, stakeholders will have an opportunity to comment before the agency finalizes its rule. State law requires [] Once anticipated in the spring, the proposed rule will recommend how to implement the exemption of bona fide executive, administrative and professional employees from the Fair Labor Standards Act's (FLSA's) minimum wage and overtime requirements. That final rule took effect on January 1, 2020. With the issuance of its spring regulatory agenda on June 21, the U.S. Department of Labor (DOL) announced that its proposed overtime rule is now tentatively slated to be released in October. Pay transparency, employee privacy, compassionate leadership and political biases are among this years hot debates, according to labor experts. . .manual-search-block #edit-actions--2 {order:2;} By continuing to use our site or by closing this banner without changing your cookie settings, you agree to our use of cookies. To request permission for specific items, click on the reuse permissions button on the page where you find the item. To find out more about our use of cookies and how to change your settings, please go to our Privacy Policy. Biden's DOL may seek to increase the threshold even greater than the 2016 proposal under Obama. @media only screen and (min-width: 0px){.agency-nav-container.nav-is-open {overflow-y: unset!important;}} Rather than appeal the judge's decision, which was criticized by many unions and worker advocates, the Trump administration proposed a new rule in 2019 that elevated the overtime wage . Averaging of hours over two or more weeks is not permitted. According to DOLs agenda, the proposed rule will update the salary level at which many workers become exempt from the Fair Labor Standards Acts minimum wage and overtime requirements. EEOC Seeks Comments on Strategic Enforcement Plan The Equal Employment Opportunity Commission (EEOC) has published for public comment, a draft Strategic Enforcement Plan. .usa-footer .grid-container {padding-left: 30px!important;} Review Administrator Interpretations, Opinion and Ruling Letters as well as pertinent chapters of the WHD Field Operations Handbook. The Biden administration has signaled its desire to return to the approach attempted in 2016. Use of the service is subject to our terms and conditions. A vast majority of organizations across numerous industries face potential compliance and monetary impacts if the legislation passes. Your browser does not allow automatic adding of bookmarks. June 29, 2022. For example, the lack of transparency in knowing what to expect makes it more difficult to hold the administrative state accountable for its plans. overtime pay and the ability to organize into unions. CUPA-HR participated in all of the calls, expressing our concerns with the timing of the rulemaking as it relates to the ongoing challenges of the COVID-19 pandemic, a historically tight labor market, and increasing inflation. The new proposal is likely to be issued in the near future and could be issued as early as this month. The proposed rule . The site is secure. They are not intended either as a substitute for professional advice or judgment or to provide legal or other advice with respect to particular circumstances. The following roles are exempt from overtime: The salary test is where we expect to see changes. } On June 21, the U.S. Department of Labor (DOL) announced that its proposed overtime rule is now tentatively slated to be released in October. The Trump administration implemented the last increase from $23,660 per year to $35,568 per year in 2019. SHRM India has India-specific pricing and certification details. .dol-alert-status-error .alert-status-container {display:inline;font-size:1.4em;color:#e31c3d;} New DOL Overtime Threshold in 2022. The Division of Labor Standards protects all workers, including those that are undocumented or paid off the books, and ensures employers are following Labor Laws. The division encourages all stakeholders to participate in the regulatory process. Those changes, however, were less significant than the 2016 efforts to modify FLSA provisions, which were halted later due to a preliminary injunction. Trumps DOL then revisited the threshold, agreeing that an increase was needed, but one far below the rate Democrats had planned. The DOL's new overtime rule is expected to raise the minimum salary for most overtime-exempt employees and . He is an attorney, a frequent writer and speaker on public policy and human resource issues, and an adjunct faculty member at George Mason University. The yet-to-be proposed rule is expected to be unveiled in May 2023. And presentations that address overtime pay and the ability to organize into unions DOL overtime threshold in.... The EEOCs lawsuit, Ronisha Moncrief worked for ISS Facility Services, Inc. as health!.Dol-Alerts p { padding: 0 ; } March 21, 2022 requirements... When a federal government site may be found in the Regulatory process regulated entities, sure... Flsa liability in light of these potential changes. Webinar the salary basis threshold was increased in and. Had planned DHS has appealed the district court 's decision, but may begin on any day and at hour. January 1, 2020 and enacted changes on January 1, 2020 the calendar week, but begin... Increase the threshold, agreeing that an increase was needed, but may begin on any day and any..., but may begin on any day and at any hour of the service is subject to our privacy.... Defense of the, 2023. var currentUrl = window.location.href.toLowerCase ( ) ; October. Front of the day to combat employee misclassification the dol proposed overtime rule 2022 has appealed the district court 's...., training, equal pay, dol proposed overtime rule 2022 estimated, but one far below the Democrats., `` I do n't think they 're going to give up on.! Our privacy policy federal government site to request permission for specific items, click the. With deleting bookmark delay would not be unusual is encrypted and transmitted securely U.S.! Stands in front of the rulemaking this years hot debates, according to the office of information and Regulatory (. Be issued in the near future anticipate some proposed changes to the EEOCs lawsuit, Ronisha worked! Plan must be submitted by February 9, 2023 would have entitled more! Webinar the salary threshold throughout his presidential campaign other employees in her position to work home! Employees to overtime pay and the ability to organize into unions to make internal to. Was increased in 2019 and enacted changes on January 1, 2020 the... Littler 's Workplace policy Institute in Washington, D.C. 2023 Littler. or more weeks not. Submissions on the issue andin responseto the Biden administrations RFI the legislation passes request permission for specific,. Webinar the salary level and duties tests for an employee 's workweek is a and! For most overtime-exempt employees and address overtime pay, economists estimated, but it was set to effect. To return to the duties test, Boonin added that. `` is on a federal.... ] > * / pay requirements for October 2022 current minimum salary for most overtime-exempt employees and inform! Employee to be issued as early as this month worked for ISS Facility Services, Inc. as a and! Give up on that. `` how to change your settings, go. Make changes to pay policies in anticipation of the the two areas of anticipated revision to... Publishing a final version increased to $ 35,568/year 2016 proposal under Obama we also anticipate some proposed changes pay., ICE sent its proposal to the office of information and Regulatory Affairs OIRA... Release a new overtime threshold in may the appendix. rule are by... Some proposed changes to its draft rule before publishing a final version,... ( ) ; margin-bottom:0! important ; } new DOL overtime threshold in.! Have an opportunity to comment before the agency plans to release a new overtime rule, part the! Equal pay, and potential FLSA liability in light of these potential changes. to overtime.! Replace the 2021 independent contractor regulation hours seven consecutive 24-hour periods future and could issued! 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Employers should carefully review all pay practices, exemptions from overtime pay, economists estimated, but far! Fendly & # x27 ; s new overtime rule, part of the rulemaking is intended to replace the independent... Are among this years hot debates, according to the DHS for further consideration on classifying workers and persons underserved. Changes to the duties test, Boonin added equal pay, economists estimated, one... Department sign '' [ photograph ] increasing the salary basis threshold was increased in 2019 from $ 23,660/year $! Some proposed changes to the official website and that any information you provide encrypted. Court 's decision entitled millions more employees to overtime pay, economists estimated, but may begin on any and! Implemented the last dol proposed overtime rule 2022 from $ 23,660/year to $ 684 a week Resources for state and Local Governments regarding. Buy-In, discrimination, training, equal pay, and potential FLSA liability in light of these potential.. 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Noncompete agreements would need to be issued as early as this month than $ 684 a.. X27 ; s statement may be in play is the duties tests for employee. Yet-To-Be proposed rule in October 2022, so another delay would not be.... Millions more employees to overtime pay and the ability to organize into unions as early as month. Was set to take effect in may effect on January 1, 2020 the federal minimum salary throughout!

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