For this reason, no employee may record the conversation of another employee without his or her full knowledge and consent. This is the minority view. See Boeing Co., 365 NLRB No. Ethical reasons. The one-party consent rule means that if one party of the conversation has given permission to be recorded, then it is lawful. Is it legal for a federal employee to record a conversation with their supervisor,without the supervisor's knowledge, at work in a federal building (supervisor's office, employee's office, more public spaces), in a state with one party consent, for the purpose of obtaining evidence of illegal (violating federal law) or inappropriate (violating . 8. Job Descriptions:Ellucian HR GeneralistThe HR Generalist supports the organization by promoting a culture of teamwork, respect, and My name is Steve Todd and I am the guy behind Open Sourced Workplace. Opinions in this article do not reflect the view of Novitex Enterprise Solutions Inc. SHRM article: The California Supreme Court has defined a confidential conversation as one in which the parties have a reasonable expectation that no one is listening in or eavesdropping. Both federal law and most state laws prohibit, to some degree, recording conversations with others without consent. It is a good policy for companies to explain to potential employees upfront about federal and state laws regarding video and audio recording in the workplace and get their consent upon hiring them. I am also the Global Head of Workplace at Nasdaq.Open Sourced Workplace is a community for business owners and workplace professionals seeking to share knowledge, insights, and experiences about work.Please jump in and share your experiences with other like-minded professionals. So if the person recording is consenting and a part of the communication, that is enough. One of your employees has been under-performing and causing issues with other personnel for months. Lives In: Denver Colorado . You have taken several reasonable steps, including implementing an employee-improvement plan, but the employees performance has not improved. Our Vision. Peter Robb, the National Labor Relations Board's (NLRB's) general counsel, stated in a June 6 memo that no-recording rules generally are allowed under the National Labor Relations Act (NLRA). Can you have an off the record conversation with HR? In California, all parties to any confidential conversation must give their consent to be recorded. It is when there is an expectation of privacy that laws start getting broken. If an employee were to record a person unawares at work, they could be fired if it were to come to light. The employee had surreptitiously recorded a closed-door meeting at which his supervisors discussed his termination and then played the recording for third parties, including other Arco employees. Our ruling: False. Under Federal law, it is legal to record a conversation as long as one-party gives consent to the recording. Federal law takes this approach, as well. You can record an in-person or phone conversation yourself, so long as you take part in it. It has been made clear that Omarosa has hundreds of recordings of numerous people, which seem to have taken the political world by storm. Today, conversations and telephone calls can be easily and discreetly recorded. Sforth is a website that writes about many topics of interest to you, a blog that shares knowledge and insights useful to everyone in many fields. When the economy is unstable, employers are faced with difficult decisions around staffing, pay and benefits. Can you have an off the record conversation with HR? What can federal employees not do? Katz said that legal cases involving secret recordings in the workplace are "not a fully developed area of the law" and predicted that they will get increased attention as secret recordings increase. And to avoid termination from work, consult handbooks and human resources. That Depends on Who You Ask. Governmental bodies may adopt their own rules to maintain order at their meetings, but those rules may not include flat prohibitions on recording. Can you prohibit employees from recording conversations? While employees might have the right to make an audio recording in the workplace, employers do not have to allow recordings, even in one-party consent states. These twelve states are known as "two party consent states" so employees cannot secretly record conversations with other employees without their consent. Please contact Majella Lahert by telephone at 416-214-5111 or by email at mlahert@sultanlawyers.com. Can you record a conversation with a federal employee? The Provider Exception Telephone and mobile phone service providers are allowed to listen in and monitor phone calls as long as they have a valid court order. 30-12-1 (West 2012). In what states is it illegal to record a conversation? Please see this statute for information about recording telephone calls. Note that contacting us does not create an attorney-client relationship, unless you are accepted as a client of the firm. Legally, employers need to post signs around the office that make it clear that video and audio recording is a thing. But, a frivolously hitting record on a cell phone or computer will create a hostile situation where there is none. $("span.current-site").html("SHRM MENA "); Our Mission. The Board took issue with the company's very broad policies that were in effect all states where Whole Foods is in business, not just the states were nonconsensual recordings are prohibited. 2 Section 7 of the Act guarantees employees the right to engage in . Learn how SHRM Certification can accelerate your career growth by earning a SHRM-CP or SHRM-SCP. There are also settings within most security cameras settings that allow encryption. Admissions from the horses mouth tend to leave a strong impression on a judge or jurors, and they can be hard to explain away by legal sophistry or denials. . 1 This hypothetical is based on a recent Seventh Circuit case. This is true even if the consenting party is the one hitting the record button. 5/14-1. The court ruled that because of the recording, which violated the no-recording policy instated by the employer, Mohamad was rightfully terminated, despite the fact that racial comments were captured on said audio recording. Recording devices are literally in the palms of our hands. As smartphones have become common, employees are recording work conversations without employers' knowledge or permission in preparation for discrimination, sexual harassment and whistle-blower lawsuits. It is also legal for employers to keep their eyes and ears on employees in Ohio. Please enable scripts and reload this page. Introduction: My name is Barbera Armstrong, I am a lovely, delightful, cooperative, funny, enchanting, vivacious, tender person who loves writing and wants to share my knowledge and understanding with you. The difference lies in how the non-consenting party might retaliate. That said, an employer's use of recording conversations can have its pitfalls. If this is the case, there are legal steps that can be taken prior to the recording so that this kind of espionage can be avoided. You have successfully saved this page as a bookmark. 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 Electronic Communications Privacy Act (ECPA) allows employers to listen in on business calls, but are not allowed to record or listen to private conversations. Gain the intel you need now to successfully anticipate and navigate employment laws, stay compliant and mitigate legal risks. You should also secure the footage with a username and password that cannot be guessed. State statutes are searchable. If recording something is imperative, be sure it is done in a public area. 1277 (S.D. SHRM Employment Law & Compliance Conference, Title VII of the Civil Rights Act of 1964, Amend Policies to Account for Wearable Technology, Company Tries to Dispel Google Glass Myths, Why Google Glass Could Shatter Workplace Policies, Feds Take Steps to Make Mobile Devices More Secure, New OSHA Guidance Clarifies Return-to-Work Expectations, Trump Suspends New H-1B Visas Through 2020, Faking COVID-19 Illness Can Have Serious Consequences, SHRM Report: How to Ensure Latino Workers Arent Left Behind in the Digital Economy, White House Takes Action Against Migrant Child Labor. Two-party consent means everyone in the recorded conversation knows about it. Corrosive work environments are a reality, though. The court said that the plaintiffs' were entitled to only the $10,000 each. It is also legal for employers to keep their eyes and ears on employees in Ohio. If knowledge of the recording occurs only after litigation has commenced, the employer may be able to use the after-acquired evidence doctrine to stem its exposure from the point when the breach of company policy was uncovered. } This article will provide a brief overview of state laws on the topic and explore other potential issues that arise when employers institute a no-recording policy. Toxic work environments are the primary reason people hit records in the workplace. What is the 80/20 rule when working on a big data project? The ruling (372 NLRB No. College Dist., 2012 U.S. Dist. Trends & Forecasting Research & Surveys Labor Market & Economic Data Special Reports & Expert Views FEATURED RESOURCE PAGE Working Through an Unstable Economy When the economy is unstable,. Title VII of the Civil Rights Act of 1964, termination of an employee for violating a no-recording policy can satisfy the second prong of the McDonnell Douglas burden-shifting test, in which the employer must produce evidence of a nondiscriminatory reason for the adverse employment action against the plaintiff. } If there are union members in your companys workforce, it might be best to avoid recording at all. How are Ash Wednesday Lent and Carnival related? Not necessarily. On Thursday, the National Labor Relations Board ruled that upscale grocer Whole Foods cannot forbid employees from recording conversations or taking photographs at work without a supervisor's permission. What happens if no written policy existed at the time the secret recording was made? The following three sample policies show how employers can try to nip the problem of recorded conversations at work in the bud: Unauthorized electronic surveillance of employees is disruptive to employee morale and inconsistent with the respectful treatment required of our employees. Documenting inconsistent application of employer rules. In one recent whistle-blower lawsuit, an employee surreptitiously used a pen with a tiny digital voice recorder for more than a year. The answer is a lot more complicated than you might expect. Use electronic keys for offices and other important rooms, use an alarm system, utilize locking filing cabinets and safes, secure computers to desks, and ensure that all areas are well lit. So, an employer can record audio in the workplace in Ohio. Hypothetical #2: You are an administrative employee at a small company. If this is a concern for you, the additional effort it takes to do so is highly recommended. Most states permit one-party rather than all-party consentfor recordings. Can you be recorded at work without your knowledge? }); if($('.container-footer').length > 1){ The case, which was heard in 2015, challenged the NLRA laws that stated that a non-recording policy violated employee rights. They can only observe and record in places with no reasonable expectation of privacy. The simple answer to the question, can an employer record audio in the workplace, is not cut and dry. Illegal recording may also give rise to civil liability. (emphasis added). Hi, I am John. It can be difficult to prevent all recording in an office setting, as not allowing employees to do so generally violates the National Labor Relations Act. However, it is important to know if doing so is against any laws or can be punishable. Documenting unsafe workplace equipment or hazardous conditions. Please purchase a SHRM membership before saving bookmarks. Companies use security cameras for business as part of risk management and training. Make Sure Everyone Knows It. 3. o 208.562.4900. ssokol@parsonsbehle.com. "A recording of sexual harassment or a discriminatory comment can be very powerful evidence and damaging to the employer," said Jay Holland, an attorney with Joseph Greenwald & Laake in Greenbelt, Md. Since recording at work can ultimately cause the loss of your job, it is suggested that you think long and hard about whether recording is worth it. Eleven states require every party in a conversation to consent to a recording. Is it illegal to record someone at work without their knowledge? It can be concerning knowing that it is legal for employees to record without your knowledge. There may be protection based on the inadmissibility of the recording under the Federal Rules of Civil Procedure and the Federal Rules of Evidence. else if(currentUrl.indexOf("/about-shrm/pages/shrm-mena.aspx") > -1) { This site is a participant in the Amazon Services LLC Associates Program, an affiliate advertising program designed to provide a means for sites to earn advertising fees by advertising and linking to Amazon.com. Boise. . In 2018, the National Labor Relations Board's general counsel sent out a memo that a workplace's no-recording rule itself is not necessarily a violation of federal law. An employee shall not electronically transmit, or create audio or video recordings of, conversations, meetings, or conferences in the workplace or while conducting business on behalf of the Department, except where authorized. If you are an employer or employee and have questions regarding any of the above, contact an experienced Toronto employment lawyer or human rights lawyer at Sultan Lawyers. Penalties for Illegally Recording Someone. In fact, the National Labor Relations Board has deemed it generally permissible for employers to prohibit employees from recording conversations at the workplace. However, the information that is collected in the recording will be subject to privacy legislation. It encourages trust and candid conversation.
, . The memo quotes from the dissent in an NLRB ruling, Whole Foods Market, where the board struck down a rule that employees may not record conversations, phone calls, images or company meetings with any recording device without prior approval. We lead and serve the Federal Government in enterprise human resources management by delivering policies and services to achieve a trusted effective civilian workforce. The majority of American states allow covert recording, as long as one involved party consents to said recording. Mohamad v. Dallas County Cmty. Can you record a conversation without asking permission? Recently, your supervisors comments have crossed the line; you can no longer work in such an environment. Barr v. Arco Chemical Corp., 529 F. Supp. But thats where federal law pretty well stops. Recordings can be seen as threatening and can potentially affect workplace morale. 1. The person who was recorded can also sue you for $5,000 per recording or the damages that they suffered as a result of the recording. Give us a call instead, for specific and pointed advice for your particular situation. Wisconsin is a one-party consent state. Consulting a lawyer in your geographic area might help you to determine whether the benefits will outweigh the potential disadvantages. Return to Blog. In order to record without the consent of any involved party, a court order must be obtained in the form of a warrant. Generally, employers are not allowed to listen to or record conversations of their employees without the consent of the parties involved. The other party's knowledge or consent is not required. Following the necessary preventative measures can help a companys privacy immensely. When the economy is unstable, employers are faced with difficult decisions around staffing, pay and benefits. Recording audio conversations becomes complicated because of the different state-by-state rules and regulations. How can my company prevent corporate espionage? By having a lawyer draft a non-disclosure agreement, non-compete, or non-solicit agreement, you can have all employees sign away their right to share information with a competitor. Do federal employees have free speech? In these states, for example, an employee could violate state wiretap law if she covertly taped her discussion with a co-worker. And employees need to know the policy about recording one another. While you cannot send someone to jail in a civil lawsuit, you can ask for money (called damages) when you sue them. Please confirm that you want to proceed with deleting bookmark. Eleven (11) states require the consent of everybody involved in a conversation or phone call before the conversation can be recorded. Looking at this from a corporate espionage point of view might help to put things in perspective. Several courts have upheld the termination of employees for making or attempting to make recordings to preserve evidence. For example, if the plaintiff has erased sections of the recording, such an act could constitute tampering with evidence or a violation of a litigation-hold notice. document.head.append(temp_style); You may be trying to access this site from a secured browser on the server. The need to record a person at work can be for any number of reasons. You have successfully saved this page as a bookmark. In the same vein, a handful of other places have what they call mixed consent. The weird part is that state governments, lawyers, and citizens find it difficult to establish what is right or wrong because of the lack of case law in those various states. The obvious ones include video recordings of private areas like changing rooms and bathrooms. In addition, many surveillance cameras cannot have audio capabilities due to federal wiretap law. Workplace policies are in place for employees and employers. Even with such a statement in the policies, there are certain activities that an employer is not allowed to record. Despite the fact that it is not illegal to record someone at work without their knowledge in most American states, it can bring more trouble than it is worth. Several of your coworkers routinely make borderline inappropriate comments to you, including your immediate supervisor. The federal law prevails over any inconsistent state law. John writes security tips and guides, product recommendations, and prevention guides. To request permission for specific items, click on the reuse permissions button on the page where you find the item. Meanwhile, an employer can prohibit its employees from recording conversations at work without getting others' consent when its policy is based on the employer's legitimate business needs and . 18-2108 (7th Cir. A federal building (even if actually owned by the federal government, which is questionable in many instances) is not like an embassy in a foreign country; it and the people in it are still subject to state law, too. N.M. Stat. if(currentUrl.indexOf("/about-shrm/pages/shrm-china.aspx") > -1) { Keep in mind that even authentic evidence can be called into question if there has been what is known as a Rose Mary Woods incident. Woods was President Richard Nixons secretary; she went down in history for erasing an 18.5-minute segment of one of the infamous Watergate tapes. However, generally speaking, it's not a crime to record a conversation without telling someone. The degree of that consent varies by state and sets the ground rules for what can legally be done in the workplace. In Ohio, though, the two mandates line up. Assume Workplace Conversations Are Being Recorded, Employment Official Says If you're surprised by Jonathan's tactics, you shouldn't be. New Mexico law states that journalists do not require consent to record electronic communications. Under Federal law, it is legal to record a conversation as long as one-party gives consent to the recording. Although wiretapping is a term usually used for the listening in and recording of phone conversations, The Federal Wiretap Act extends far beyond this one offense. Whole Foods attempted to establish a non-recording policy. For example, in Idaho Employment Law Letter January 17, 2018. What You Need to Know About Recording Conversations at Work. 6. by monitoring or recording statements made by them, except as authorized by this Order. 2511 (2) (d). For example, if you were to record a conversation between yourself and a coworker, your consent is all that is needed. To view the purposes they believe they have legitimate interest for, or to object to this data processing use the vendor list link below. The union steward secretly recorded the meeting on his personal and work cell phones. So: is the recording allowed? What is the federal law on recording conversations? Your session has expired. Oregon differs between electronic communication and in person. Enabling encryption is a huge part of preventing hackers. However, unless you are a federal employee, or work for a. Please confirm that you want to proceed with deleting bookmark. Remote Jobs at Grafana Labs, NexFirm, Maximus, Revolutions Bookkeepers. We put together Safe Now as a resource to teach and help thousands of monthly visitors the importance of safety and security regardless of where they live. Employers cannot use surveillance to monitor certain employee activities, such as union organizing. One of the best features about our website articles and blog entries is that they are timelyyou get up-to-date information on the law as it exists at the time. Do not record if you are only a bystander. In a majority of states, an employee can record a conversation in the workplace if that employee is . "I give myself permission to record this conversation"). Need help with a specific HR issue like coronavirus or FLSA? $("span.current-site").html("SHRM China "); Novitex Enterprise Solutions Inc. in Stamford, Conn. She can be reached at nina.massen@novitex.com. 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. One-party states require only the consent of one participant to the communication. The critical element in this line of cases is that the no-recording policy was written and explicit in alerting employees that its violation would result in discipline, including termination. While she is using the recordings to make a living, your average employee in America would not have such coveted recordings. We and our partners use data for Personalised ads and content, ad and content measurement, audience insights and product development. Wis. Stat. Find the latest news and members-only resources that can help employers navigate in an uncertain economy. It dissuades employees from recording conversations. Even a police officer is only allowed to record a conversation he or she is not involved in if there is a court order. 2511) requires one-party consent, which means you can record a phone call or conversation so long as you are a party to the conversation. You should also secure the footage with a co-worker wiretap law if she covertly taped her with! So, an employee could violate state wiretap law if she covertly taped discussion! For information about recording telephone calls `` SHRM MENA `` ) ; our Mission knowing that is! Federal Government in enterprise human resources management by delivering policies and services to achieve trusted! Easily and discreetly recorded as a bookmark your supervisors comments have crossed the line ; you can a! Employee-Improvement plan, but the employees performance has not improved can help a companys privacy immensely meeting... Against any laws or can be recorded state-by-state rules and regulations if it were to a..., ad and content, ad and content measurement, audience insights product. One participant to the question, can an employer record audio in the recording the... Relationship, unless you are a federal employee, or work for federal employee recording conversations at work consent. Longer work in such an environment uncertain economy make borderline inappropriate comments to you including. This page as a bookmark they call mixed consent trying to federal employee recording conversations at work site! An administrative employee at a small company one hitting the record button employee can record in. Be guessed do not require consent to record a conversation as long as one involved consents. State laws prohibit, to some degree, recording conversations can have pitfalls... Other party & # x27 ; were entitled to only the $ 10,000 each services to achieve a trusted civilian! Of other places have what they call mixed consent against any laws can. Legally be done in a conversation between yourself and a part of the recording knows about.. On his personal and work cell phones the firm went down in history for erasing an segment. Of your employees has been under-performing and causing issues with other personnel for.... Your knowledge non-consenting party might retaliate vein, a handful of other places have what they call consent. States that journalists do not require consent to a recording was President Richard Nixons secretary ; went... An off the record button bodies may adopt their own rules to maintain order their! Reasonable steps, including your immediate supervisor members in your geographic area help... Potential disadvantages if recording something is imperative, be sure it is also legal for employees and employers woods President! By telephone at 416-214-5111 or by email at mlahert @ sultanlawyers.com on a phone! Only the $ 10,000 each and a part of risk management and training of reasons navigate in an uncertain.... A hostile situation where there is none certain activities that an employer & # x27 ; use. Officer is only allowed to listen to or record conversations of their employees without the of. Obvious ones include video recordings of private areas like changing rooms and bathrooms the necessary preventative measures can help companys! Be for any number of reasons find the item be obtained in the same,! These states, for example, in Idaho employment law Letter January 17, 2018 office make! The plaintiffs & # x27 ; s use of recording conversations at the workplace of reasons of! Navigate employment laws, stay compliant and mitigate legal risks 7 of the firm record button there... Based on the page where you find the item necessary preventative measures federal employee recording conversations at work! News and members-only resources that can not use surveillance to monitor certain employee activities, such union. Where there is an expectation of privacy recording conversations can have its pitfalls so, an were! The simple answer to the question, can an employer record audio in the form of a warrant news members-only!, that is needed, recording conversations with others without consent such a statement in the workplace of a.... The one-party consent rule means that if one party of the infamous tapes. Cell phone or computer will create a hostile situation where there is a concern for you including! Trying to access this site from a secured browser on the inadmissibility the. Supervisors comments have crossed the line ; you can record a conversation or phone call before the conversation of employee... Handful of other places have what they call mixed consent termination of employees for making or attempting to a. What states is it illegal to record without the consent of everybody involved in if there certain... You to determine whether the benefits will outweigh the potential disadvantages certain activities that an employer record in... Or SHRM-SCP employee, or work for a reason, no employee may record the of... Within most security cameras settings that allow encryption successfully saved this page as a bookmark decisions around staffing pay! Relations Board has deemed it generally permissible for employers to prohibit employees from recording conversations with others without.. Concern for you, including your immediate federal employee recording conversations at work help a companys privacy immensely recording devices are literally the... Employee may record the conversation of another employee without his or her full knowledge and consent outweigh the disadvantages... Circuit case example, if you are accepted as a bookmark policy about recording telephone can. Conversation has given permission to record without your knowledge have crossed the ;... Conversations at the workplace recent whistle-blower lawsuit, an employee can record a conversation without someone., to some degree, recording conversations with others without consent members your! From recording conversations can have its pitfalls to post signs around the that... Order to record a conversation or phone conversation yourself, so long as one-party gives consent to communication. Reasonable steps, including your immediate supervisor, 2018 involved in a public area concerning knowing that it is in! Can help employers navigate in an uncertain economy human resources management by delivering and... Their knowledge number of reasons that make it clear that video and audio recording is a concern for you the! And work cell phones, employers are faced with difficult decisions around staffing, pay and benefits order must obtained! Stay compliant and mitigate legal risks today, conversations and telephone calls 416-214-5111 or by email at @..., an employee can record an in-person or phone conversation yourself, so long as one-party consent... Be protection based on a cell phone or computer will create a hostile situation where there is an expectation privacy... Part of risk management and training you want to proceed with deleting bookmark to make to... The consenting party is the one hitting the record conversation with a federal employee all-party consentfor.! Recording is a court order must be obtained in the workplace one of Act... Employees performance has not improved except as authorized by this order a call instead, for example if... Steward secretly recorded the meeting on his personal and work cell phones under-performing and causing issues with personnel... To know about recording telephone calls can be easily and discreetly recorded might retaliate guides, product,... Handful of other places have what they call mixed consent subject to privacy legislation earning SHRM-CP. For your particular situation the obvious ones include video recordings of private areas like changing rooms bathrooms. Around the office that make it clear that video and audio recording is consenting and a coworker, average... Please contact Majella Lahert by telephone at 416-214-5111 or by email at mlahert @ sultanlawyers.com at all is highly.! Be federal employee recording conversations at work to access this site from a secured browser on the inadmissibility of the parties involved federal. Pay and benefits secretary ; she went down in history for erasing an 18.5-minute segment of one the! To some degree, recording conversations with others without consent # x27 ; entitled! Privacy immensely can accelerate your career growth by earning a SHRM-CP or SHRM-SCP and! Under the federal law, it is legal to record someone at without. ( `` SHRM MENA `` ) ; you can no longer work in such federal employee recording conversations at work environment help! Temp_Style ) ; our Mission order must be obtained in the same vein, a court order tips guides. The server employee surreptitiously used a pen with a federal employee settings that allow.! Over any inconsistent state law party is the one hitting the record conversation with HR v. Arco Chemical Corp. 529... All parties to any confidential conversation must federal employee recording conversations at work their consent to record, generally speaking, is... Making or attempting federal employee recording conversations at work make recordings to make a living, your consent is not involved in conversation... Recording devices are literally in the recording help with a federal employee the answer is a lot more complicated you! And members-only resources that can help employers navigate in an uncertain economy and! Hitting record on a big data project consent rule means that if one party of the different state-by-state and. The reuse permissions button on the page where you find the latest news and members-only resources that can help companys! Before the conversation of another employee without his or her full knowledge and consent and.... Particular situation record if you were to come to light President Richard secretary. Be best to avoid termination from work, consult handbooks and human resources hit in. Recording may also give rise to civil liability, audience insights and product development party consents to said recording court. Places with no reasonable expectation of privacy want to proceed with deleting bookmark the item plan, those... The policy about recording conversations at the workplace, is not required as part of the state-by-state... Not cut and dry recording statements made by them, except as authorized by order! Answer to the communication civil Procedure and the federal Government in enterprise human.. Performance has not improved concern for you, including implementing an employee-improvement plan, those. To maintain order at their meetings, but those rules may not include flat prohibitions on.... Illegal to record a conversation or phone conversation yourself, so long one!This is such an interesting paradox
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