Category Archives: background checks

Successful C-Suite Psychopaths

Higher-than-expected levels of psychopathic traits exist among people found in the upper echelons of the corporate business sector, and companies should undertake psychological screening to help identify ‘successful psychopaths.’

That’s according to new research presented at the Australian Psychological Society’s Congress, which was recently held in Melbourne.

Forensic psychologist Nathan Brooks says emerging studies show that, while one in 100 people in the general community and one in five people in the prison system are considered psychopathic, these traits are common in the upper echelons of the corporate world, with a prevalence of between 3 percent and 21 percent.

Brooks says the term “successful psychopath,” which describes high-flyers with psychopathic traits such as insincerity, a lack of empathy or remorse, egocentric, charming and superficial, has emerged in the wake of the 2008 global financial crisis, prompting a range of new studies.

To arrive at their conclusions, Brooks and colleagues first examined psychopathic traits in the business sector. One study of 261 corporate professionals in the supply chain management industry showed extremely high prevalence rates of psychopathy, with 21 percent of participants found to have clinically significant levels of psychopathic traits — a figure comparable to prison populations.

The current issue of HRE also features a story by Julie Cook Ramirez about how HR can weed out psychopaths in the workplace:

What sets a psychopathic leader apart is the way in which he or she manages or interact with people, says William Spangler, associate professor of management and organizational behavior at the School of Management, State University of New York at Binghamton.

“Psychopathic leaders are toxic individuals who manage subordinates [with] a combination of fear, threats, punishment and public humiliation,” says Spangler. “They present a positive persona to their superiors and are often promoted for what is perceived to be their effectiveness, but they can [cause] great harm to the organization by destroying relationships, damaging work units and putting the entire company at risk for legal action.”

Ramirez also quotes A.J. Marsden, assistant professor of human services and psychology at Beacon College in Leesburg, Fla. who says that, by hiring a person who demonstrates these types of tendencies, “you are putting your other employees at risk for bullying and other abuse.”

“The organization may end up losing many good employees [and] facing harassment suits against the psychopath,” says Marsden. “At higher levels of employment, psychopaths may engage in unethical and illegal behaviors, such as embezzlement, just to look successful.”

 

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The ‘Ban the Box’ Paradox

HRE columnist Peter Cappelli recently penned a piece suggesting that “ban the box” legislation, while certainly well-intentioned, may not be the best approach to helping ex-felons transition back into the workforce.

Such laws, which prohibit employers from making questions about criminal convictions part of the hiring process, have been adopted in 24 states and more than 100 cities and counties in the U.S.

The good news is that “more ex-felons seem to have gotten jobs,” says Cappelli, a professor of management and director of the Center for Human Resources at The Wharton School of the University of Pennsylvania in Philadelphia.

Meanwhile, the overall hiring of young black and Hispanic men has declined, he adds.

“In other words, we swapped one form of discrimination for another,” says Cappelli. “It wasn’t supposed to work that way. The problem is people don’t behave the way the legislation anticipated. We don’t wait until the law allows us to find out about criminal records. We start guessing.”

Researchers Jennifer Doleac, an assistant professor of public policy at the University of Virginia, and Benjamin Hansen, an associate professor of economics at the University of Oregon, seem to share that view.

In their recent study (which Cappelli does reference in his column), the pair of professors tested the net effects of ban-the-box policies on employment outcomes for various demographic groups, using data from the Current Population survey.

The authors found that, among men between the ages of 25 and 34 who don’t hold a college degree, BTB policies decrease the probability of being employed by 4.5 percent for black men, and by 3.5 percent for Hispanic men.

In the same age group, black men with a college degree and white women of all educational levels benefit from this policy, according to the study. This finding suggests that, when criminal history information is unavailable, “employers pursue candidates who are less likely to have been recently incarcerated based on their remaining observable characteristics,” the authors write.

The goal of BTB laws “is to improve employment outcomes for ex-offenders and thereby reduce racial disparities in employment.”

The legislation, however, “could do more harm than good,” they continue, noting that firms that don’t want to hire ex-offenders might statistically discriminate based on race and gender in order to avoid interviewing applicants who are more likely to have been recently incarcerated.

“Of particular concern, employers might avoid interviewing young, low-skilled, black and Hispanic men when [ban-the-box legislation] is in effect,” note Doleac and Hansen. “This could worsen employment outcomes for those already-disadvantaged groups, without meaningfully improving outcomes for ex-offenders.”

In a recent UVA Today article, Doleac offers a “two-fold policy plan” to help combat discrimination against those for whom “ban the box” laws were designed, “without unintentionally hurting minority men without criminal records.”

For example, “individuals with criminal records may have histories of violent or dishonest behavior, and on average might struggle with greater emotional trauma and have worse interpersonal skills,” she says.

Providing opportunities for such applicants to demonstrate that they don’t have these problems—perhaps by having a local job-training program vouch for them—could potentially “help them overcome automatic assumptions about their temperament and suitability.”

Another “broad category of policies” that might improve upon current legislation includes education and rehabilitation programs that “would actually improve the underlying job readiness of this population,” says Doleac, who is currently working on a new technology-based project aimed at improving re-entry outcomes for individuals leaving prison.

“The reason that employers discriminate against people with [criminal] records is that, on average, that group is less job-ready than people without records.”

 

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‘Professional Plaintiff’ Targets Firms via FCRA

Meet Cory Groshek. He’s an aspiring rapper who calls himself “Cory Crush.” He’s also a fitness guru who produces YouTube videos featuring himself as “Low Carb Cory.” He also writes scary stories under his own name and has worked as a customer-service representative.

Groshek also has found a pretty lucrative gig targeting companies that unwittingly violate the Fair Credit Reporting Act when they fail to properly disclose their intention to obtain his credit history as part of the hiring process. According to court documents, Groshek has used this tactic to obtain at least $230,000 in legal settlements from companies across the country.

As reported by the Milwaukee Journal Sentinel, Groshek applied to 562 jobs within an 18-month period of time and has admitted to threatening 40 companies with class-action lawsuits on behalf of all their recent hires for technical violations of the federal law unless they pay him a personal settlement to go away. In most cases, the companies decided to simply pay Groshek — about 20 paid him relatively small settlements of between $5,000 and $35,000.

Under the law, the plaintiffs involved in a FCRA class action could be entitled to up to $1,000 per employee should the case succeed. And, Groshek had good reason to believe he’d succeed: According to WebRecon, the number of FCRA class-action suits filed against companies last year doubled to 400 from the number filed in 2014. Companies such as Domino’s, Home Depot, Uber and the parent company of the Food Lion supermarket chain are among those that have agreed to pay millions of dollars each to settle FCRA class-action suits.

A small number of companies opted not to settle with Groshek, however, and Time Warner Cable was among them. He’d applied for, and was offered, an $11-an hour job with the cable giant. Instead of accepting the job, Groshek sent TWC a 2,300-word letter threatening to sue the company over FCRA violations on behalf of all recent hires unless they paid him a settlement of between $5 million to $10 million. TWC refused to settle and Groshek filed suit, which is how his activities came to light.

TWC’s lawyers have filed a motion to dismiss the lawsuit, arguing that Groshek (whom they referred to as a “professional plaintiff”) shouldn’t be allowed to sue because he intentionally initiated any alleged violations and that he violated state extortion laws. Groshek has also filed suit against three other companies that refused to settle; those cases are also pending.

Melissa Sorenson, executive director of the National Association of Professional Background Screeners, told the Journal Sentinel that previous settlements of FCRA claims have emboldened more people to file FCRA class-action lawsuits in recent years.

“It’s opened up an entire area of practice,” she told the paper.

Due to the many technical requirements of the FCRA statute, “there are lots of technical ways to violate the statute, and there are a lot of plaintiffs’ attorneys who recognize that,” Veena Iyer, a labor and employment attorney at Nilan Johnson Lewis told my colleague Mark McGraw for a story on FCRA lawsuits last year.

Many employers unintentionally commit FCRA violations in handling adverse-action notices, sources told McGraw. In particular, employers must ensure that applicants are given a meaningful opportunity to challenge any incorrect information that’s uncovered in a background report. Some of the most common FCRA claims are that employers’ background-check disclosure forms contained language not limited to the disclosure required by the statute, the employer failed to provide a pre-adverse action notice, and the employer did not wait the right amount of time before taking final adverse action against an individual.

“Do not assume that no one will challenge the information in the consumer report,” Doug Kauffman, a partner in Balch & Bingham’s labor and employment group, told McGraw. “Employers who become too mechanical in the application of providing the notice of a potential adverse action, wait seven days, and then automatically send the final adverse action, may effectively skip a key requirement under FCRA to provide a meaningful opportunity to the applicant to correct any misinformation.”

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Americans Much in Favor of Background Checks

Granted, the company announcing this research has some “skin in the game,” as we sometimes say around here, but this study — which 502005532 -- criminal backgroundwas explained to me in some detail at the recent SHRM16 conference in Washington — bears sharing.

It’s so counterintuitive to so much of what we’ve been hearing when it comes to the popularity, or lack thereof, of background screening, I thought it might pique some interest.

The study (registration required) was commissioned by Sterling Talent Solutions, the entity created from the recent acquisition by SterlingBackcheck of EmployeeScreenIQ. (Kelton Global conducted the research.)

And here’s the statistic that compels me to share: It finds 95 percent of the 1,077 Americans over the age of 18 polled think background checks should be mandatory to determine whether a person has a criminal past before he or she takes on the responsibilities of a job.

As Nick Fishman, the company’s communications vice president, explained to me, “we’ve all heard a lot about background checks, and how they are negatively perceived, and negatively affect job candidates [indeed, here’s just a sampling of such content we’ve posted on HREOnline and HRE Daily, along with guidelines and regulations employers now need to be aware of], but no one’s gone out and asked the general public what they actually think about them. Well, we did.”

For so long, it’s been assumed employers take the safety of their workplaces more seriously than employees, Fishman said. “Now we see employees care as much, if not more.”

The poll also found 81 percent of Americans believe feeling safe at all times is their right and the workplace is one of the top two locations where they expect to feel safe. What’s more, 68 percent indicated they are willing to undergo background checks themselves; in other words, it’s not just something they believe should be in place for others.

“For too long, the debate about background checks has failed to take into account how everyday Americans actually feel about the role background checks play in their daily lives — namely to keep them safe — and has instead focused on issues promoted by [governmental agencies and advocacy groups],” says Clare Hart, chief executive officer of Sterling. (Think ban-the-box legislation currently spreading through the country at city, county and state levels.) Hart continues:

“[This explains] why Americans depend on employers to look into the backgrounds and criminal histories of job candidates. Importantly, contrary to much of what’s been reported in the media, only 14 percent of Americans consider background checks to be an invasion of privacy.”

So what are you/we to do with this?

Obviously, background-check providers would love the door to open ever-wider to the need for their services. But there’s more to this, I think, yet another reminder that we don’t always know what’s in the hearts and minds of the people working for us, and we should not pretend to know without asking them.

(Employee-satisfaction-survey providers would no doubt have some thoughts on this as well.)

 

 

 

 

 

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Uber’s Horrifying New Headache

It seems the revolutionary ride-hailing app is once again in the headlines at the start of another week, and for all the wrong reasons.

As was widely reported over the weekend, Uber is now dealing with the PR fallout from the shootings in Kalamazoo, Mich., on Saturday night, allegedly by an Uber driver who may have even picked up a fare in between shootings.

(Indeed, one passenger’s harrowing tale of his trip with the alleged gunman, identified as Jason Dalton, on the night of the shootings, can be found here.)

According to the story in the Chicago Tribune, a spokeswoman for Uber confirmed that Dalton was a driver for the company, but she declined to say whether he was driving Saturday night.

The Trib story also notes:

Uber prohibits both passengers and drivers from possessing guns of any kind in a vehicle. Anyone found to be in violation of the policy may be prohibited from using or driving for the service.

While the alleged shooter had no criminal background, this incident nonetheless brings up a very difficult question for Uber going forward. Given the loose structure and general lack of corporate oversight  of Uber’s workforce, how can the company assure its customers that the next time they get into an Uber driver’s vehicle, they won’t be entering a possible crime scene?

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Warren: Credit Checks are Discrimination

Earlier today, Sen. Elizabeth Warren (D-Mass.) and Rep. Steve Cohen (D-Tenn.) posted an op-ed piece titled “It’s Time to Stop Employer Credit Checks” on Time’s website, based on the idea that a person’s credit history “has no correlation with his or her ability to succeed in the workplace.”

For hardworking people struggling to make ends meet, the pair writes, the only way to get back on their feet is to find a good job and earn a paycheck. But even when they are able to sell their homes—often at a loss—or after they are forced to close their business’ doors or find temporary work, that bad credit history continues to haunt them.

To quote directly from the piece:

And despite the often-desperate effort to find a job, many employers are unfairly shutting the door on applicants with less-than-stellar credit. We should call this what it is: discrimination.

And, Warren and Cohen note, such discriminatory practices are why they are re-introducing the Equal Employment for All Act.

“It would help level the playing field for hardworking families who deserve a fair shake,” they write. “Our legislation would prohibit employers from requiring prospective employees to disclose their credit history as part of the job application process, unless the position requires a national security clearance or a credit report is required under state or local law. It makes sure that hiring decisions are based on an individual’s skill and experience—not on past financial struggles. The bill also would stop discrimination against African Americans, Latinos and seniors who are more likely to be hit by bad credit.”

This is an issue of basic fairness, they write. “Americans should be able to compete for jobs on their merits, not on whether they have enough money to pay all their bills. Much of America—hard-working, bill-paying America—has damaged credit. It is wrong to shut them out of the job market.”

In its coverage of the op-ed piece, the Huffington Post cites a 2012 survey conducted by the Society for Human Resource Management that found 53 percent of employers said that they did not conduct background checks on any of their job candidates, though 87 percent said that they did check the credit history of potential employees in financial positions. Forty-five percent of respondents in the survey said that they conducted credit checks to prevent theft and embezzlement.

“No one should be denied the chance to compete for a job because of a credit report that bears no relationship to job performance and that can be riddled with inaccuracies,” the pols write. “Our Equal Employment for All Act would make sure all hardworking Americans have a real shot to get back into the workforce and back on their feet.”

It’s unclear how many more working Americans would actually benefit from a ban on employers’ ability to check the credit reports of prospective candidates, but what is certain is that this issue won’t be going away any time soon, just like a bad credit report.

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Doing Your Homework in the APAC Region

If there’s an underlying message in First Advantage’s latest study on background checks in the Asia Pacific region, it’s to tread carefully.

ThinkstockPhotos-122576156I received a copy of the firm’s 2014 Background Screening Trends Report for Asia Pacific the other day, analyzing 2 million of its background checks it conducted in the region. Among the findings: a 6.5 percent increase in candidates misrepresenting their curriculum vitae. Digging deeper into the data, Australia and New Zealand (27 percent) consistently recorded a higher discrepancy rate across Asia Pacific, followed by Singapore and Hong Kong (19 percent and 16 percent, respectively).

As has been the case in prior years, the discrepancy rate in China continued to be lowest among the lot, at around 9 percent in Q4.

So where are the discrepancies occurring?  In terms of employment discrepancies, 54 percent concerned employment history. The three most common education-related gaps in the region were graduation dates with a variance of more than six months (6 percent), graduation dates with a variance of less than six months (5 percent) and unconfirmed degree (3 percent).

The research also revealed that employers are beefing up their screening efforts and increasing their number of background checks, with 67 percent of all cases subjected to at least five checks in 2014, compared to 42 percent in 2013.

Mathew Glasner, South Asia managing director for First Advantage, found the lower discrepancies in the less mature and higher risk markets like Malaysia, China and the Philippines particularly interesting. “This is driven by fewer checks per screen than we typically find in the more mature markets,” he said. “In the Philippines, for example, our customers conducted, on average, only 3.5 checks per screen and uncovered only 12.8 percent discrepancies compared to Australia, where they conduct, on average, 5.2 checks per screen and uncover 26.94 percent discrepancies. This behavior is counterintuitive when you consider the risk associated with hiring into these emerging and higher risk markets.”

Among the other trends Glasner is spotting: increasing usage in the region of infinity screening—or the rechecking of existing employees’ backgrounds. “The ongoing screening of staff represents a real opportunity to mitigate fraud, financial crime and reputational risk,” he said.

It goes without saying, of course: These findings should bode well for First Advantage and other background checkers with operations in the region.

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More in the Coffer to Help Prisoners Find Jobs

It wasn’t that long ago (little more than a month) that I was blogging about an announcement by the U.S. Department of Labor that it was 126268666 -- prisoner workingcreating a $5 million funding opportunity to link inmates to jobs before they’re even released.

The idea there was to place American Job Centers inside local jails where soon-to-be-released prisoners would be able to access job-placement services and counseling to increase their chances of getting work without going through that uneasy “limbo” between living behind bars and earning a living.

Now, again from the DOL, comes significantly more, as this release announces: a whopping $27 million to fund its Training to Work-Adult Re-entry grant program to help, as its release says, “thousands of soon-to-be-released inmates become productive citizens.”

I wish I could tell you specifically how the two programs differ. Numerous calls and emails to the DOL went unanswered. But that doesn’t really matter. What does is the added help — significant help — ex-cons will be getting to rejoin the workforce and the world.

According to the announcement, the department expects to award about 20 grants with a maximum value of $1,360,000 each to provide training and employment services for men and women, ages 18 and older (including veterans), who participate in state or local work-release programs.

The approach is designed to link and coordinate education and training services for these people to get industry-recognized credentials. Those credentials will, in turn, help them find meaningful work (translated: not just assembly line and blue-collar) and give employers what they need to fill their gaps in growing sectors and industries.

Having personal experience with this — a relative who is now trying to re-enter society after paying his dues for some very bad life choices — I confess, what U.S. Secretary of Labor Thomas E. Perez has to say about this latest move resonates with me:

“A good job gives a person a sense of dignity and purpose. It enables [him or her] to find a decent place to live and enjoy a hot meal at home. Good jobs are a pathway to the middle class. Those who have paid their debt to society deserve the opportunity to find and hold useful employment. It puts money in their pocket, most of which is pumped back into the economy. In the best America, everyone shares our prosperity. That’s what these grants can make possible.”

Of course, all the money in the world can’t buy a guarantee that all hiring managers will leave all bias at the door when they enter the interview room. Or follow all the steps of the interview process laid out by the Equal Employment Opportunity Commission in its background-check guidelines, including when it’s appropriate to discuss an applicant’s past incarceration.

But it’s safe to say most employers would have to look favorably on an ex-prisoner’s initiative to get the education and credentialing he or she needs to succeed in that particular job in that particular organization in that particular industry.

If there are closed minds out there, this can only help to open them.

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SHRM Legal Conference Gets Under Way

You’ve probably heard of the best-selling book What To Expect When You’re Expecting. Well, what about what to expect when your employees are expecting? This was, in fact, the title of a session during the first day of SHRM’s 2015 Employment Law & Legislative Conference this Monday, where employment attorney Courtney Perez reminded a packed room that the Equal Employment Opportunity Commission has made targeting pregnancy discrimination one of its top enforcement priorities.

“This topic is personal for me,” said Perez, a working mom of two and the expectant mother of a third. As a senior associate at Dallas-based Carter Scholer Arnett Hamada & Mockler, she advises clients regularly on how to avoid discriminating against employees and ending up on the wrong end of a lawsuit.

Mothers make up a huge chunk of the workforce: 57 percent of women with children 1 years old or younger hold down jobs outside the home, according to the Bureau of Labor Statistics, while 62 percent of women who give birth are in the workforce at the time and 40 percent of U.S. households with children younger than 18 have mothers who are the sole or primary breadwinners, she said.

As the number of women in the workforce has grown, so too has the rate of pregnancy discrimination: The number of pregnancy discrimination charges filed with the EEOC went up by 35 percent between 1997 and 2008, said Perez. One of the biggest areas of contention revolves around the topic of light duty for pregnant workers: The Supreme Court is expected to announce its ruling soon in Young vs. UPS, in which delivery driver Peggy Young filed suit against the package delivery company after it required her to go on unpaid maternity leave instead of providing her with light duty during her pregnancy. UPS said Young didn’t qualify for a program in which temporarily disabled employees were given light duty until they could resume their regular jobs.

Should the Supreme Court rule in favor of Young, “it may expand the definition of the Pregnancy Discrimination Act,” the 1978 law passed by Congress in response to an earlier Supreme Court ruling that employers who discriminated against pregnant employees were not guilty of sex discrimination, said Perez.

Although pregnancy itself is not considered a disability under the law, the EEOC’s guidelines recommend that employers treat pregnant employees whose condition limits their job abilities the same as other temporarily disabled employees, said Perez.

She recommended a set of best practices for HR to follow, chiefly that HR ensure that a company’s policies and practices related to hiring, promotion and pay do not disadvantage pregnant employees or those who plan to take or have taken maternity leave. And beware the “mommy track,” she said, referring to the practice of steering pregnant employees into less-prestigious, lower-paying jobs.

“That’s the stuff of which discrimination lawsuits are made,” said Perez.

State governments aren’t waiting on the Supreme Court or Congress to give increased protections to pregnant workers, said Jonathan Segal, a partner at Duane Morris in Philadelphia. At least nine states have passed laws that go further than the federal PDA in requiring companies to accommodate pregnant employees, he said, part of a trend in which states are taking a more activist role in workplace matters.

“There may be gridlock at the federal level, but at the state level we’re seeing a lot of action,” said Segal during the session “All Politics is Local: State Law Trends.”

Thirteen states so far (and at least 90 municipalities) have passed so-called “ban the box” laws that prohibit employers from asking job candidates on their initial application whether they’ve ever been convicted of something. Four states have passed laws specifically protecting interns from discrimination and harassment. Twenty one states have passed laws banning discrimination on the basis of sexual orientation, and 19 of those states also have laws banning gender-identity discrimination.

“With the 2016 election, you can expect to see more ballot initiatives pertaining to paid sick leave, raising the minimum wage, gender identity — more Democratic voters tend to participate in presidential elections than mid-term ones, and these issues resonate with them,” said Segal.

Conservative state lawmakers have also been active: Twenty-two states have passed laws protecting the right of employees to store guns in their cars while they’re at work. A new law proposed in Pennsylvania would even allow employees to store guns on the outside of their vehicles, said Segal. Meanwhile, the number of “right to work” states is at an all-time high of 26, having recently been joined by Wisconsin and Michigan.

All of this poses a special burden for multi-state employers, said Segal, who must comply with a patchwork of regulations across the country.

In some cases, he said, the best approach is to keep it simple. With respect to ban-the-box, it might make sense to simply remove the question from all job application forms, rather than having differing forms for different jurisdictions.

“Does it really make sense to have multiple forms for different states?” asked Segal. “This is an area where we’re certainly going to see more states adopt this rule. It’s one thing that actually attracts support from both Republicans and Democrats.”

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2014’s Top 10 Posts

Here at The Leader Board, it was another interesting year covering the HR arena, with issues ranging from the controversy surrounding the HR certification, to lawsuits based on a worker’s commute, to HR leaders’ efforts to ensure their organizations’ compliance with the Affordable Care Act and various other legal requirements, just to name a few.

Below are links to the top 10 most-read posts of 2014, according to Google Analytics.

When viewed together, the posts create an accurate mosaic of the issues HR leaders are faced this year and are likely to continue dealing with into the new year.

Enjoy!

  1. SHRM Rolls Out New Certification (May 13)
  2. HR Plaintiffs Build Their Case Against Lowe’s (Jan. 24)
  3. Google Tackles Incentives and Rewards (April 29)
  4. More Restrictions on Criminal-Background Checks (Feb. 10)
  5. Employers Missing ADA Coverage in FMLA Cases (June 30)
  6. Friedman Shakes It Up at SHRM (June 23)
  7. ‘The 27 Challenges Managers Face’ (July 28)
  8. Who’s Leading the Way? (Nov. 13)
  9. Woman Sues Ex-Employer Over Commute (July 2)
  10. Giving HR the Boot (April 9)
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