For example, just last week the U.S. Department of Labor announced that Husk Energy, a petroleum refinery in Lima, Ohio, agreed to pay nearly $1,000,000 in back wages after an investigation by the Department of Labor in which it was found that its employees were not being paid overtime compensation. The company was also found to have not included a "shift differential" in calculating the regular rate for purposes of determining the overtime rate. As another example, Peach Tree Maintenance, Inc., a landscaping company in Nashville, Tennessee, also recently agreed to pay almost $450,000 in back wages after an investigation by the U.S. Department of Labor. According to the Department of Labor, many of the employees were being paid a flat daily rate with no overtime compensation. And, in Pine Bluff, Arkansas, a health care company was also recently required to pay over $61,000 in back wages for the failure to pay overtime compensation to its employees. There, according to the Department of Labor, the company failed to combine the hours that the employees worked at two locations. In January of this year, the U.S. Department of Labor filed a lawsuit against Security Express Inc. and Broadway Protection, two security companies in Little Rock, Arkansas for the failure to pay minimum wages and overtime compensation under federal law. Finally, the Department of Labor announced two weeks ago that it will be conducting a probe of Utah restaurants in order to battle suspected violations of minimum wage and child labor provisions of federal law.
As these examples show, violations of the Fair Labor Standards Act and wage and hour laws are widespread across the country and the U.S. Department of Labor has apparently increased its enforcement of these laws. Employees must stay vigilant to ensure that employers are paying them as required by law.
]]> If you have questions regarding minimum wage and overtime compensation, contact the Law Offices of Santiago J. Padilla, P.A. as soon as possible. Based in Miami, Florida, we represent employers and employees throughout South Florida in employment cases. To set up a free initial consultation, you can contact us through the Internet or call us at (305) 358-1949.]]>The discriminatory aspect of this issue is that studies show that minorities generally have worse credit reports than non-minorities. Therefore, when a company has a practice of rejecting applicants because of their credit reports, then that practice, which has a disparate impact on minorities, may be a violation of Title VII of the Civil Rights Act of 1964. Unless the policy of rejecting job applicants because of their credit report is related to the job and consistent with business necessity, the practice may constitute illegal discrimination.
]]> If you have questions regarding the use of credit checks by employer or other employment laws, contact the Law Offices of Santiago J. Padilla, P.A. as soon as possible. Based in Miami, Florida, we represent employers and employees throughout South Florida in employment cases. To set up a free initial consultation, you can contact us through the Internet or call us at (305) 358-1949.]]>It is a fundamental requirement in Florida that if an employer or claimant wants to appeal a determination or decision regarding unemployment compensation benefits, the appeal must be filed within twenty (20) days of the determination or decision being mailed. The requirement is jurisdictional and completely divests the Commission of jurisdiction if it is not met. Many cases are dismissed because of an untimely appeal. Even a few days is fatal to the appeal.
However, Florida courts have carved out an exception to this rule in cases where the appeal was filed untimely due to force majeure events (acts of God) or due to causes completely outside the control of the claimant. The seminal case is Dumorange v. Florida Unemployment Appeals Commission, 947 So.2d 472 (Fla. 3rd DCA, 2006). In that case, a former City of Miami police officer was laid off and initially granted unemployment compensation benefits. The City of Miami appealed the determination and a hearing was held before an Appeals Referee, who decided that the claimant was discharged because of misconduct connected with the work. Approximately twenty-seven days after the Appeals Referee's decision was mailed, the claimant filed an appeal of the decision. However, the Florida Unemployment Appeals Commission ruled that the appeal was untimely and that under Florida Statutes Section 443.151(4)(c), it had no jurisdiction to hear an untimely appeal. The claimant then appealed to the Third District Court of Appeals and argued that he could not file his appeal within the required twenty-day period because he was adversely affected by Hurricane Wilma. The Court of Appeals took judicial notice of the fact that Hurricane Wilma disrupted the lives of virtually all residents of South Florida and that electrical power was lacking in the vast majority of homes and businesses in Miami-Dade County. The Court then stated that it would be a denial of due process to not give the claimant an opportunity to be heard and therefore remanded the case to the Commission to adjudicate the appeal.
The seminal case with respect to this issue is Mayhue's Super Liquor Stores, Inc. v. Hodgson, 464 F.2d 1196 (5th Cir. 1974). That case involved a Broward County based liquor store that required all employees to sign an agreement (as a condition of employment) that any cash register shortages would be deducted from the employee's wages. The trial court upheld the validity of the agreement, but the Fifth Circuit Court of Appeals declared that the agreement requiring repayment of cash register shortages was invalid because it violated the FLSA. In doing so, the Court held that (1) an employer cannot make deductions that result in the employee receiving less than the minimum wage and (2) the right to a minimum wage cannot be waived by agreement. The Court also noted that the agreement had the effect of impermissibly shifting part of the employer's business expense to the employee, which was inappropriate as a "kick-back" under the regulations.
Another common practice is for employers to make deductions for uniforms. However, under the FLSA if the uniforms are required by the employer, by law or due to the nature of the job, or if the uniforms are specially-branded clothing that must be worn by all employees, deductions for the cost of such uniforms may not reduce an employee's wage below the minimum wage.
Finally, it should be noted that this rule cannot be circumvented by requiring an employee to purchase his or her own uniforms or, in the case of merchandise damage (such as in the case of a broken bottle of wine), by requiring the employee to replace such merchandise. These would all be considered impermissible "kick-backs" that would be unlawful under the regulations.
A similar claim that was brought against the Kohler Company by the EEOC in Atlanta, Georgia was settled approximately two weeks for $175,000.00 and the company's commitment to conduct equal opportunity training. While the company denied liability, in that case the EEOC alleged that a showroom executive who had an excellent performance record was placed on probation after she informed management about her pregnancy and was ultimately fired prior to her delivery.
Under the Pregnancy Discrimination Act (PDA), discrimination on the basis of pregnancy is a form of sex discrimination. To prevail on a pregnancy claim, the employee must show that she was treated differently because of her pregnancy or a pregnancy-related condition. The PDA provides that an employer must treat a pregnant employee the same as they would treat any other similarly affected employee. The comparator employees would be employees that suffer any other temporary medical condition, such as having to undergo minor surgery.
However, while the PDA requires the employer to ignore the employee's pregnancy, the employer is not required to ignore absences from work unless the employer overlooks comparable absences of nonpregnant employees. Therefore, one of the most difficult challenges that arise with pregnancy claims is the belief that pregnant employees are entitled to take time off of work to go to medical appointments. This is not true. In this respect, the courts have held that excessive absences from work, even if caused by the pregnancy, could result in the justified termination of the pregnant employee's employment. Moreover, the PDA does not require employers to offer maternity leave or to take other steps to make it easier for pregnant women to work. As one court noted, "employers can treat pregnant women as badly as they treat similarly affected but nonpregnant employees." Troupe v. May Dept. Stores Co., 20 F.3d 734 (7th Cir. 1994). The important point is that the treatment must be the same. Therefore, a pregnant employee must be careful to schedule medical appointments during non-work hours and to limit absences from work, otherwise, her pregnancy claim could be in jeopardy.
Most clients believe that most commissioned employees are not entitled to overtime pay. However, that is not true. Some retail sales employees are exempt from overtime pay, but these exemptions require specific compliance with certain requirements. The classic example is the case of automobile dealerships, where sales personnel are exempt from the overtime pay requirement. Yet, this exemption is absolute. There are certain requirements that must be met. In addition, with respect to automobile salespersons, they must be paid at least the minimum wage for all hours that they work, regardless of whether or not they make a sale.
Typically, automobile salespersons are paid a set "draw" which is usually based on working forty hours per week at the minimum wage or slightly above the minimum wage. Problems arise if the salesperson either works more than forty hours per week or does not sell any automobiles. The problem is compounded if the salesperson works more than forty hours per week and does not sell any automobiles. The salesperson receives the draw, but does not receive any compensation for work performed over forty hours per week.
Another exemption for commissioned salespersons is the retail sales exemption. Typically, salespersons in a retail store are not entitled to an overtime premium. However, in order to qualify for the exemption, the following requirements must be met: (1) the employer must be a retail store, with 75% of the annual sales being retail sales; (2) the employee's regular rate of pay must exceed one and one-half times the applicable minimum wage for every hour worked; and (3) more than half of the employee's compensation must be in the form of commissions. If all of these requirements are not met, then the employer does not qualify for the retail sales exemption and an overtime premium must be paid for all hours worked over forty per week.
However, it should be noted that an individual cannot file a claim based on "public information." The individual must be the original source of the information, e.g., he or she must have personal knowledge of and/or seen the false claim or fraud perpetrated. In the employment context, if an employee is required by his employer to submit a false claim or report, that employee has standing to sue under the False Claims Act and may recover as much as 30 percent of the amount recovered by the government. If an employee files a claim under the False Claims Act and gets fired because of it, then the employee can sue the employer for retaliation under the Florida Civil Rights Act or under the applicable federal law.
An example of recent litigation under the False Claims Act is the case of Merck Pharmaceuticals, where they agreed to pay $650,000.00 to settle a False Claims Act lawsuit. That lawsuit was settled in January 2008 and involved accusations of the company taking kickbacks and violating Medicaid best price regulations for the pharmaceuticals that it was marketing. Another example is the recent settlement (September 2009) by Pfizer Pharmaceuticals where they agreed to pay $2.3 billion for allegedly marketing "off label" drugs that were not approved by the Food and Drug Administration. In that case, a Pfizer employee will receive more than $51 million for bringing the matter to the attention of the authorities under the False Claims Act.
In Florida, the courts have established several factors that are analyzed in determining whether waiting time is spent for the benefit of the employer. The factors attempt to discern how much restraint is placed on the employee's use of the time. The question is "Can the employee dedicate that time to personal activities?" The factors considered in this analysis are (1) whether there was a requirement that the employee stay or live on the premises, (2) whether there were excessive geographical restrictions on the employee's movements, (3) whether the frequency of calls into work were unduly restrictive, (4) whether a fixed time limit for response was unduly restrictive, (5) whether the on-call employee could easily trade on-call responsibilities, (6) whether use of a pager could ease restrictions, and (7) whether the employee had actually engaged in personal activities during call-in time.
Under this analysis, if an employee is required to remain on the employer's premises, or so close to the employer's premises that he or she cannot use the time effectively for personal matters, then such waiting time would be compensable. In fact, even time spent at home could be compensable if the restrictions placed on an employee's activities are so restrictive that the employee cannot use the time effectively for personal matters. The typical example is the case of forest rangers who engaged in fire protection activities for their employer. They were required to monitor hand-held radios twenty-four hours per day during on-call periods and respond immediately to emergencies. In that case, the court found that the employees were entitled to compensation under the FLSA.
Therefore, the analysis will initially turn on where the employee is required to wait. Almost invariably, if the employee is required to wait on the employer's premises, then the time waiting to work would be compensable. If the employee can leave the employer's premises, then the question is whether or not the employee can use the time effectively for personal matters. This will depend on the restrictions placed on the employee's use of the time.
In that case, Reedy v. Florida Unemployment Appeals Commission, Case No. 1D08-6330 (1st DCA 2009), the employee voluntarily left her job because she was facing significant stress at work that gave her anxiety and exacerbated her medical problems. On appeal, the Court of Appeals stated the general rule that an employee who voluntarily quits a job is not entitled to unemployment compensation benefits unless it is shown that she left for good cause attributable to the employer. Then the Court found that the employee's job had become exceedingly stressful and that she had repeatedly asked for assistance, but simply did not get the assistance that she needed. She began to suffer headaches and chest pains, which her physician diagnosed were related to the anxiety and stress that she suffered at work. Her job performance began to slip significantly. Then, after a short vacation, the employee informed her employer that she would not return to work. She then applied for unemployment compensation benefits.
The Court held that under the circumstances of the case, the employee had shown good cause because those circumstances were such that any reasonable person would be compelled to have given up her job when faced with what the employee was faced. The Court found that the employee voluntarily left her job for good cause attributable to the employer and reinstated the unemployment compensation benefits.
This case demonstrates that there are circumstances where an employee will still receive unemployment compensation benefits even if he quits his job. Similar circumstances could include (i) where the employer cuts the employee's hours to such an extent that the employee resigns in order to seek a job that offers more hours, (ii) where the employee walks off the job because of a hostile work environment, and (iii) where the employer transfers the employee to a location that is much further away from her home.
]]> If you have questions regarding unemployment compensation, contact the Law Offices of Santiago J. Padilla, P.A. as soon as possible. Based in Miami, Florida, we represent employers and employees throughout South Florida in employment cases. To set up a free initial consultation, you can contact us through the Internet or call us at (305) 358-1949.The employees protested and requested that their supervisor stop because they were married and/or simply were not interested in him. Both employees made complaints to Home Depot's human resources department regarding their supervisor's advances, but the conduct and comments continued. Eventually one of the employees quit and the other was terminated for a violation of company policies. They both filed charges with the U.S. Equal Employment Opportunity Commission (EEOC) alleging sexual harassment. However, the EEOC terminated its investigation without a decision. The employees then brought suit in federal court.
Regarding the sexual harassment claims, the trial court granted summary judgment in favor of Home Depot stating that the conduct was simply not pervasive enough to constitute actionable sexual harassment or to create a hostile work environment. The employees appealed the decision to the Eleventh Circuit Court of Appeals. The Court first stated that in order for the conduct to be actionable, the comments and conduct needed to be of a sexual nature. The Court then stated that not all of the statements or conduct complained of were of a sexual nature. For example, the Court stated that comments regarding the appearance of the plaintiffs, that their clothing was appealing, that their hair was beautiful, and that the supervisor liked their eyes were inappropriate workplace comments, but not actionable under Title VII of the Civil Rights Act of 1964 because they were not "based on sex." Yet, oddly enough, the Court stated that these were mere "flirtatious comments." Regarding the touchings and other physical conduct, the Court found that there were only four touchings that were sexual in nature. They that the supervisor put his arm around one of the employees was not conduct of a "sexual nature." Based on this analysis, the Court eliminated many of the alleged comments and touchings and then concluded that the remaining comments and touchings were insufficient to make out a case of sexual harassment because they were just not frequent enough.
The Court's decision is alarming because it fails to view the alleged conduct in its appropriate context and in its entirety, as the law requires. The Court simply eliminated some of the conduct that it considered not sexual in nature, as if it never happened. Then held that the isolated conduct did not constitute sexual harassment. In this regard, Judge Fawsett, of the Middle District of Florida, siting by designation, issued a 10-page dissent stating that the conduct alleged by the plaintiffs goes far beyond "ordinary socializing in the workplace," particularly if viewed in context and under the totality of the circumstances as the law requires. As an example, the Court had held that the supervisor's putting his arm around one of the employees was not sexual in nature. However, Judge Fawsett astutely noted that the Court's conclusion failed to indicate that at the same time that the supervisor had his arm around the employee, he had also put his hand on the employee's thigh under the table where they were seated. Judge Fawsett noted that "[s]elect comments, pulled from their context and deemed facially inoffensive by the majority, demonstrate an impermissible sex bias when viewed in context." Judge Fawsett would have allowed the jury to determine based on the totality of the circumstances whether or not the conduct and comments constituted sexual harassment.
This case shines a light on how cases of sexual harassment need to be addressed. In particular, one of the failings of the plaintiffs may have been their not addressing the conduct and the comments of the alleged harasser in their entirety. They should have shown how all of the comments and conduct had sexual undertones, since it appears that they they did. Indeed, many employees of the company started referring to one of the plaintiff's as "Lenny's bitch." How else could that have been interpreted?
The U.S. Congress passed the Amendments to the ADA in a specific response to two U.S. Supreme Court cases that narrowed the coverage of the ADA. One case in particular dealt with the issue of an uncorrected vision standard. In that case, Sutton v. United Airlines, 527 U.S. 471, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999), the Court held that a person is not "disabled" if corrective measures allow them to function as if they did not have a disability. In Sutton, two individuals who had 20/20 vision with glasses, but 20/400 vision without glasses were denied employment as commercial airline pilots because the airline required 20/100 or better uncorrected vision. The Court held that the two individuals were not actually disabled because they had 20/20 vision using corrective measures. However, Congress found that this ruling was too restrictive and that many people with disabilities were not being covered by the ADA. The Amendments specifically overruled the Sutton decision and required the U.S. Equal Employment Opportunity Commission (EEOC) to issue regulations implementing the ADA Amendments. The EEOC issued proposed regulations on September 23, 2009.
The proposed regulations provide that mitigating measures cannot be considered when determining whether or not a person has a disability as defined under the ADA. Indeed, in the preamble to the regulations, the EEOC specifically states that most persons who are screened out of a job because they cannot meet an uncorrected vision standard will meet the definition of having a "disability" under the law. Therefore, unless the uncorrected vision standard is job-related and consistent with business necessity, the requirement will be unlawful.
In that case, the evidence showed that a male co-worker constantly talked about his penis, which included graphic descriptions of its size, and constantly bragged about his sexual prowess, history, successes and aspirations. He would make lewd comments about female workers and customers, and whinny like a horse when an attractive woman would come into the store. The comments were not directed at any employee, but one female employee was so disgusted with the constant barrage of comments that she filed a lawsuit claiming that his comments created a hostile work environment.
At trial, the lower court refused to allow the evidence to go to the jury, and Directed a Verdict for the employer. The trial court reasoned that even though there may have been lewd and vulgar comments of a sexually explicit nature, the comments were not directed at the female employee that had filed the lawsuit. They were just generalized comments in the workplace and, although lewd and vulgar, they did not create a hostile work environment because the female employee was not the target of those comments.
However, the Court of Appeals disagreed and specifically held that the plaintiff could have been subjected to sexual harassment by the comments despite not having been a target of the comments. They reasoned that she overheard and was exposed to the comments and vulgarities. That was sufficient under the law for the jury to consider whether or not a hostile work environment was created.
The Blizzard case is significant because last year the Eleventh Circuit Court of Appeals decided a similar case and held that a hostile work environment claim does not require the plaintiff herself to be targeted. See Reeves v. C.H. Robinson Worldwide, Inc., 525 F.3d 1139 (11th Cir., 2008). However, that decision was vacated in May 2009 when the Court ordered a re-hearing en banc (by the entire Court) of its decision. The Blizzard case helps to clarify the law in this circuit regarding what constitutes a hostile work environment.
It has generally been the position of the U.S. Equal Employment Opportunity Commission (EEOC) that where the reasonable accommodation is not readily apparent, then the employer must make a reasonable effort to identify one. See http://www.eeoc.gov/facts/ada17.html. In fact, the regulations implementing the ADA specifically provide that in order to determine an appropriate reasonable accommodation, the employer should engage in an informal, interactive process with the disabled employee. See 29 C.F.R.§1630.2(o)(3).
However, the Eleventh Circuit Court of Appeal's recent decision in Webb v. Donley, No. 09-10050 (11th Cir., 2009), appears to turn that principle on its head. In that case, which was decided two weeks ago (September 14, 2009), the Court specifically stated that "if the employee does not identify a reasonable accommodation, the employer does not have to enter into an interactive dialogue or show undue hardship." There, the plaintiff, who suffered from Fibromyalgia and Myofascial Pain Syndrome, alleged that her employer discriminated against her by failing to allow her to work on a modified schedule. What is odd is that the evidence showed that her employer had previously allowed her to work a modified schedule in the past. The Court, however, held that just because the employer allowed the employee to work a modified schedule in the past, it does not mean that the accommodation requested is reasonable. It seems that the basis of the Court's decision was that the employee did not offer any other type of reasonable accommodation.
While it is unclear whether the Webb decision will withstand legal scrutiny, the lesson to be learned is that a disabled employee must be proactive and suggest numerous reasonable accommodations to his or her employer. Insisting on a single type of accommodation, even if such an accommodation was provided in the past, may be held to be unreasonable. Therefore, a disabled employee should provide and suggest to his or her employer several alternative reasonable accommodations that will allow him or or to perform the job.
With respect to occupations in food service and hotel establishments, a recent Guidance Memorandum issued by the U.S. Department of Justice (DOJ), which is the government agency charged with enforcement of the public accommodation provisions of the ADA, gives us an indication as to such restrictions will be viewed. In its Guidance Memorandum, the DOJ clarified that the ADA protects individuals with HIV and AIDS in professions such as barbering, massage therapy and home health care assistance. More specifically, the Guidance Memorandum states that public and private licensing agencies are prohibited from denying a license to an individual because of he or she has been diagnosed with HIV or AIDS. According to the DOJ, individuals with HIV and AIDS still face obstacles in obtaining state licensure in these occupations because of what it termed "overly broad state licensure requirements." The DOJ reasoned that "excluding individuals with HIV under these licensure requirements is unnecessary and discriminates against these individuals in violation of the ADA" because HIV is not communicated through casual contact. As a result, the DOJ stated that agencies that required a doctor's certification that an individual is free from "communicable diseases" must exclude diseases not transmitted through casual contact, such as HIV.
Based on this rationale, Florida laws that requires food service and hotel workers to be free from communicable diseases are overly broad and may be a violation of federal law. Specifically, Florida law (Section 599.221(8)) provides that "[a] person, while suffering from any contagious or communicable disease, while a carrier of such disease, or while afflicted with boils or infected wounds or sores, may not be employed by any establishment licensed under this chapter [food and hotel services], in any capacity whereby there is a likelihood such disease could be transmitted to other individuals." As indicated by the DOJ Guidance Memorandum, that law must exclude diseases not communicated through casual contact, such as HIV. To make matters worse, the Florida Division of Hotels and Restaurants also provides that Public Food Service Catering Establishment employees "must be free of open sores and skin infections, respiratory infections, upset stomach, diarrhea or other communicable diseases." That requirement may also be a violation of federal law.
Under the ADA, individuals can be denied employment or access to opportunities only if they pose a "direct threat" to the health or safety of themselves or others that could not be eliminated through a reasonable accommodation. But irrational fears and stereotypes cannot result in a determination that there is a direct threat to public safety. As the DOJ states, "[p]eople with HIV or AIDS should not be denied access to their chosen profession because of outdated laws or unfounded stereotypes and fears."
This practice, however, may constitute unlawful discrimination. Specifically, Title VII of the Civil Rights Act of 1964 prohibits hiring practices that disadvantage minorities, even if the practice is facially neutral, unless the company can prove that the practices are related to measuring a person's capability to do a job. The Supreme Court of the United States stated long ago in Griggs v. Duke Power Company, 401 U.S. 424 (1974) that a facially neutral hiring practice that has a disproportionate impact on minorities is illegal unless it is job related for the position in question and consistent with business necessity. In addition, recently, the U.S. Equal Employment Opportunity Commission's (EEOC) assistant legal counsel noted that rejecting job applicants based on financial criteria such as a poor credit rating may have a disproportionate impact on minority groups.
With respect to credit checks, the evidence is overwhelming that minority groups have a worse credit score than non-minorities. In fact, in a study by the Federal Home Loan Mortgage Corporation (Freddie Mac), it was found that both African Americans and Hispanics have statistically significantly lower credit scores that their White counterparts. Furthermore, even the Federal Reserve found in 1991 that African American borrowers obtain loans far less often and on worse terms than non-minorities, concluding that there is widespread and institutionalized discrimination in the nation's banking system. Also, an article in the University of Miami Law Review in 2005 found that African Americans make up a disproportionate percentage of debtors in bankruptcy, which further affects a person's credit score. Therefore, it is unquestionable that minorities have on the average lower credit scores than non-minorities. As such, the use of credit checks in hiring practices will have a disproportionate impact on minorities and may constitute unlawful discrimination.
Because of these reasons, Courts are beginning to apply Title VII concepts to these types of employer practices. In fact, as early as 1974, a U.S. District Court in Illinois found that a police department could only use financial information in their background checks if using the information did not have an adverse impact on minorities or if it is job related and consistent with business necessity. See United States v. City of Chicago, 385 F. Supp. 543 (N.D. Ill. 1974). Recently, in 2004, an EEOC charge was filed against the Johnson & Johnson Company alleging that an employee was denied a position because of a credit check. That case resulted in a settlement that changed the way that the company uses credit checks in their hiring practices. Even the EEOC in a 2006 Directive for its Compliance Manual stated that the practice of screening job applicants based on credit history would be subject to challenge under the discrimination laws.
Despite this alarming trend, there may be some relief coming in the future. An example is the bill introduced on August 10, 2009 by Wisconsin State Representative Kim Hixon that seeks to prohibit the use of credit checks as a job screening tool by employers. According to Rep. Hixon, Assembly Bill 367 will stop employers from using poor credit history as a deciding factor for employment.
]]> If you have questions regarding the use of credit checks in employment, contact the Law Offices of Santiago J. Padilla, P.A. as soon as possible. Based in Miami, Florida, we represent employers and employees throughout South Florida in employment cases. To set up a free initial consultation, you can contact us through the Internet or call us at (305) 358-1949.]]>