Wednesday, June 26th, 2013
Employee Emily files a Title VII sexual harassment charge with the EEOC, and then a lawsuit in a Virginia federal court, against ABC Company. Emily alleges that she was subjected to egregious unwelcome comments and actions of a sexual nature in the workplace by Charlie. Charlie has the title of Lead Coordinator in Emily’s department and has the authority to direct Emily’s daily work activities. However, Charlie does not have the power to hire, fire, demote, promote, transfer or discipline Emily. A critical question in determining whether ABC may be liable is whether Charlie is considered a “supervisor” under Title VII.
In Vance v. Ball State University et al., 2013 U.S. Lexis 4703 (U.S. June 24, 2013), the Supreme Court, in a controversial 5-4 decision, held that the following test would apply in determining whether Charlie is a “supervisor” under Title VII:
We hold that an employee is a ‘supervisor’ . . . under Title VII if he or she is empowered by the employer to take tangible employment actions against the victim, i.e., to effect a ‘significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.’
In so holding, the Court expressly rejected (and criticized) the more expansive definition advanced by the EEOC in 1999, in which the EEOC opined that an employee could also be a “supervisor” if the employee had “authority to direct [another] employee’s daily work activities.” Thus, in my example above, Charlie would not be Emily’s supervisor under Title VII.
This is an important decision because a different test of liability applies depending on whether the alleged harasser is a supervisor or a co-worker.
Potential Employer Liability Under Title VII if Alleged Harasser is “Supervisor”
An employer is liable under Title VII when a supervisor engages in harassment based on a protected class (e.g., sex) and takes a tangible employment action (e.g., firing, failing to promote, reassignment with significantly different responsibilities) against the victim. In such a case, the employer is strictly liable for the supervisor’s action.
In addition, if a supervisor’s harassment does not culminate in a tangible employment action, the employer can nevertheless be liable for the supervisor’s creation of a hostile work environment unless the employer is able to establish an affirmative defense. Specifically, an employer can mitigate or avoid liability by showing that 1) it exercised reasonable care to prevent and promptly correct any harassing behavior and 2) the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities that were provided.1
Potential Employer Liability Under Title VII if Harassment Committed By Co-Worker
On the other hand, if the harassing employee is a co-worker, a negligence standard applies. To prevail, the alleged victim must show that “the employer knew or should have known of the offensive conduct, but failed to take appropriate corrective action.” This negligence standard has been the law in Virginia (and elsewhere) for decades. In a 1995 Virginia case, the 4th Circuit held:
When presented with the existence of illegal conduct, employers can be required to respond promptly and effectively, but when an employer’s remedial response results in the cessation of the complained of conduct, liability must cease as well.
Spicer v. Virginia Dep’t. of Corr., 66 F.3d 705, 711 (4th Cir. 1995) (en banc). Bear in mind, however, that an employer cannot adopt a “see no evil, hear no evil” strategy. An employer can be charged with constructive knowledge of the co-worker harassment (i.e., “should have known”) when it fails to provide reasonable procedures for victims to register complaints. In the Ball State decision, the Court offered this admonition:
A plaintiff can still prevail by showing that his or her employer was negligent in failing to prevent harassment from taking place. Evidence that an employer did not monitor the workplace, failed to respond to complaints, failed to provide a system for registering complaints, or effectively discouraged complaints from being filed would be relevant.
Bottom Line Advice For Employers
There is much to say about this decision. For now, I offer three recommendations.
- Do you know who would be considered the “supervisors” in your organization under the Court’s test? HR professionals are well advised to analyze the organizational chart, talk with other executives, and determine the persons who are authorized to take “tangible employment actions.” (An employee may be a supervisor, however, even though his or her proposed action is subject to approval by higher management. If the employee has the power to make or recommend decisions having direct economic consequences for the alleged victim, the employee will still likely be found to be a supervisor.)
- Once a company has determined the identity of its supervisors, employers should ensure their supervisors receive regular training and education as to the company’s EEO policies and complaint process. Supervisors need to know the potential consequences of their actions. In addition, they must comprehend the proper protocol in the event that they become aware of potential violations of the company’s EEO policy (i.e., harassment, discrimination or retaliation).
- I also recommend that you implement some “checks and balances” to review proposed “tangible employment actions” by a supervisor before the action is implemented. It would be best if HR and/or upper management is able to confirm the justification for the action.
1 This standard was developed in two Supreme Court cases decided in 1998, Burlington Industries v. Ellerth, 524 U.S. 742 (1998) and Faragher v. Boca Raton, 524 U.S. 775 (1998).
Tuesday, June 11th, 2013
Little known to the public or to the average business (unless you are Martha Stewart, Scooter Libby, or Bernie Madoff) is the text of 18 U.S.C. § 1001(a), which provides for criminal penalties of substantial fines and imprisonment of up to five years for making any false statement to any federal authority. But, the legal regime of false statements is not so clear cut. Section 1001 makes it a crime if one “falsifies, conceals, or covers up by any trick, scheme or device a material fact” or if one “makes any materially false, fictitious, or fraudulent statement or representation” or “makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry.”
While this statute clearly covers any intentional or knowing false statements, it also includes less intentional acts. For example, many federal contracts require progress reports, budget updates, and the like. Usually buried within the fine print is a reference to 18 U.S.C. § 1001(a), meaning that if a contractor or employee glosses over a material fact during its reporting, the company and/or individual may have violated section 1001.
While there are a plethora of examples where a company could violate section 1001 despite good intentions, it is important to understand the risk and to know what to do when an issue arises. So, what can you do?
First, seek legal counsel immediately. It is always more cost effective to seek early legal advice. The old saying “the cover up is always worse than the crime” cannot be more true. A large majority of federal criminal cases stem from similar factual scenarios: a company recognizes a potential issue, but seeks to work through it and focus on what they do best (e.g., construction, not legal analysis), and ultimately ends up spending large amounts of money and critical managerial time on responding to a federal investigation.
Second, take a deep breath. Once you have skilled and experienced legal counsel, you can focus on your business. Having good representation means that you can be assured that a line of communication is open with federal authorities and that any misunderstandings or potential criminal conduct is being addressed informally, and (hopefully) without recourse to any formal court proceedings.
Finally, take proactive measures to budget for potential legal exposure. Many small businesses budget for everyday expenses such as insurance, but do not have the foresight to prepare for potentially large legal expenses. Federal investigators pursue leads and investigate potential crime, even where the investigation reveals nothing. These investigations cost companies time and money, and can be managed in a cost effective manner if competent and experienced legal counsel is obtained early in the process.
Let’s recap: what do you do when you receive a call or visit from any federal authority? Call legal counsel, take a deep breath, and thank yourself for budgeting for such times.
Wednesday, June 5th, 2013
If you are a government contractor or subcontractor, you may be subject to various affirmative action obligations whether you know it or not. The Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) is tasked with enforcing these affirmative action obligations.
The OFCCP continues to increase its enforcement efforts, particularly in the construction industry. During the Obama administration, the OFCCP has doubled the number of compliance evaluations for construction companies. The OFCCP will continue to target the construction industry because reports show that construction companies are more likely to be in violation of the affirmative action obligations.
Are you a construction contractor? If you have a federal construction contract or subcontract over $10,000, you must comply with certain affirmative action requirements. Bid solicitations and the underlying contracts for these projects are required to advise you of these requirements. Oftentimes, these important provisions are overlooked because they are hidden among the boilerplate language.
What happens if you are selected for a compliance evaluation? The OFCCP typically mails you a scheduling letter requesting that you submit certain documentation relating to affirmative action compliance and compensation data within thirty days. This is commonly known as the “desk audit” phase of a compliance evaluation.
If the results of the desk audit indicate potential discrimination or non-compliance, the OFCCP will conduct an on-site audit, which may include requesting additional data, inspecting your facilities, interviewing your employees, etc. Take advantage of the fact that legal counsel can be present at the facility inspection as well as during interviews with management.
It is imperative to begin preparing for the compliance evaluation immediately upon receiving the scheduling letter. Prior to submitting any documentation to the OFCCP, make sure that you have carefully reviewed it and that you are prepared to provide explanations for pay discrepancies and/or affirmative action efforts.
What is the OFCCP looking for? As a construction contractor, you are required to demonstrate good faith efforts to comply with goals established for employing women and minorities. The OFCCP will not penalize you for not employing a certain percentage of minorities and/or females – however, it will focus on your outreach and recruitment efforts as well as other affirmative action obligations. The OFCCP will also closely analyze your hiring and pay practices to ensure that they are not discriminatory.
Be proactive. Now is the time to conduct a self-audit of your recruitment, hiring and pay practices to ensure that you are in compliance with the affirmative action obligations. The cost of non-compliance can be costly and may even prevent you from receiving any more federal contracts or subcontracts. Don’t risk it – make sure that you are in compliance now.
Tuesday, June 4th, 2013
Two recent court opinions are of interest to Virginia construction lawyers and businesses. The first one relates to an assignment of a construction contract, and the second one to the enforcement of a mechanic’s lien where it has been “bonded off.”
In Smart Choice Corp. V. Wayne’s Erecting LLC, Judge Conrad issued the opinion of the USDC for the Western District of Virginia concerning the defendant’s motion to dismiss. In this case, contractor M.D. Russell Construction entered into a contract with Wayne’s Erecting concerning the construction of an office building. M.D. Russell subsequently assigned this contract to Smart Choice. At the close of the project, Wayne’s Erecting signed an unconditional waiver and release in favor of Smart Choice. Smart Choice then sued Wayne’s Erecting for allegedly breaching the contract. Smart Choice alleged that Wayne’s Erecting ignored the project drawings and incorrectly built the building.
The court held that the amended complaint alleged sufficient facts to state a plausible claim for relief. Smart Choice specifically alleged that M.D. Russell Construction assigned the contract to Smart Choice, and that Wayne’s Erecting was aware of this assignment. The court further found that these allegations were supported by the language of the unconditional waiver and release, which stated that Wayne’s Erecting had received full payment from Smart Choice for labor and materials it provided to the project. We’ll have to wait and see what happens at the Summary Judgment stage, but for now Smart Choice’s claims have survived the defendant’s initial motion to dismiss.
In Johnson Controls Inc. v. Norair Engineering Corp., the Fairfax County Circuit Court issued an opinion concerning whether a bond principal is a necessary part for a claim against a mechanic’s lien release bond. Chris Hill recently wrote about this opinion on his Construction Law Musings blog. Chris’ post includes a link to the letter opinion by the Fairfax County Circuit Court.
In this matter the plaintiff, Johnson Controls, provided materials to the defendant, Norair Engineering, for a commercial construction project. Johnson Controls recorded a memorandum for mechanic’s lien (the “Lien”) against the project property. Pursuant to Virginia Code § 43-71, Norair Engineering subsequently “bonded off” the Lien by substituting a mechanic’s lien release bond (the “Bond”) in the place of the Lien. The Bond substitutes the security given to the lien claimant, and does not change the underlying claims or defenses presented by the parties.
In its suit to enforce the Lien claim as against the Bond, Johnson Controls named Norair Engineering as a defendant, but it failed to name Norair Engineering as a defendant in the specific count to enforce the Lien claim as against the Bond. The court held that as the Bond principal, Norair Engineering is a necessary party to the count to enforce the Lien claim against the Bond. Despite the fact that Norair Engineering was named as a defendant in other counts, the court held that it did not have the right to contest the Lien claim as against the Bond. Norair Engineering only has the right to contest the Lien claim as against the Bond if it is named as a defendant in the lien enforcement count.
The six-month period to file suit to enforce the Lien claim had run, therefore amendment was permitted only if the modified claim related back to the original complaint. Virginia code § 8.01-6.1 expressly provides that the relation back provision does not apply to mechanic’s lien claims. Johnson Controls was not permitted to amend its count to enforce the Lien claim as against the Bond.
Because Johnson Controls failed to name a necessary party, and because Johnson Controls was time barred from amending its Lien claim as against the Bond, the court dismissed the count to enforce the Lien claim as against the Bond.
Remember; when suing to enforce a lien claim as against a mechanic’s lien release bond, only the bond principal and the surety are necessary parties. Don’t leave either of these parties out of the count to enforce the lien claim.
Monday, June 3rd, 2013
Developers have discovered the benefit of identifying early on if their projects are eligible to participate in tax incentive programs. The Federal Preservation Tax Incentives program alone has certified the rehabilitation of over 38,000 historic buildings, with investments totaling over $66 Billion for the rehabilitation of these historic properties. Following are some highlights of the federal and state historic rehabilitation tax incentive programs and the new market tax credit (NMTC) program.
Historic Structures
Federal and State Preservation/Rehabilitation Tax Credits programs are designed to encourage developers to rehabilitate historic structures, a choice that without incentives would often prove more expensive than new construction.
Federal Preservation Tax Incentives
The Federal Preservation Tax Incentives program provides a 20% federal income tax credit for the rehabilitation of certain historic, income-producing buildings. In order to qualify for the federal credits, the property must be listed on the National Register of Historic Places or be certified by the National Park Service as a contributing structure in a historic district. During the rehabilitation process, the developer and the project architect and/or architectural historian work closely with the National Park Service and the State Historic Preservation Office to ensure the rehabilitation is in keeping with the Secretary of Interior’s Standards for Rehabilitation, the standard by which the completed rehabilitation will be inspected for final certification.
Many states have also established historic preservation incentive programs similar to the federal program, including Virginia, Maryland, North Carolina and West Virginia. Virginia has the Rehabilitation Tax Credit program, a 25% state income tax credit on qualifying expenditures, that is available for both income-producing and owner-occupied properties and is administered by the Virginia Department of Historic Resources. Qualifying projects may be eligible to receive both federal and state historic tax credits.
If the property owner cannot fully utilize the historic tax credits, the credits can often be monetized through identifying investor partners to participate in the project. Recent decisions by courts in the third and fourth circuits require that such partnerships be reviewed carefully to address concerns identified by both courts.
New Markets Tax Credit Program
The New Markets Tax Credit (NMTC) program may be used to help finance a wide range of business ventures from operating businesses and renewable energy facilities to the construction of new developments and rehabilitation of historic structures. The overarching goal of the NMTC program is to encourage investment in economically disadvantaged communities.
Qualifying investments result in investors receiving a federal income tax credit equal to 39 percent of the original investment amount, which are claimed over a seven year period.
The NMTC program is only approved through 2013. The President’s proposed budget for fiscal year 2014 proposes to permanently reauthorize the NMTC program, at a level of $5 billion in allocations per year, and would allow the new market tax credits to be used to offset Alternative Minimum Tax (AMT) liability. We will have to wait and see if the proposal is included in the final budget.
For more information about project eligibility and utilizing tax credit incentive programs to benefit your project, please contact Gentry Locke attorneys Bruce Stockburger or Christen Church.
Monday, May 20th, 2013
On May 15, 2013, the OFCCP issued a notice that federal supply and service contractors will be required to use the most recent race, ethnicity and sex data from the Census Bureau to develop written affirmative action plans commencing on January 1, 2014. The notice observed that federal regulations require contractors to calculate availability estimates based on the “most current discrete statistical information available.”
Last November, the Census Bureau began releasing updated information in a series of tables that break down the U.S. labor force by sex, race and ethnicity. This information collected during 2006-2010 is referred to as the “2010 EEO Table” and is searchable by geographic location, occupation and other variables.
Under Executive Order 11246, federal supply and service contractors with 50 or more employees who have a contract worth $50,000 or more must generate an affirmative action plan on an annual basis. This new rule does not apply to federal construction contractors.
Wednesday, May 1st, 2013
If you are a contractor trying to get paid for a claim on your construction project, then you have to prove that you were somehow damaged. Easier said than done – right?
The measured mile approach is one way for a contractor show or prove its lost productivity on a construction project. And, when it can be used, it is an approved method for measuring the lost productivity.
In the U.S. Industries, Inc. v. Blake Construction Co., Inc. case, the U.S. Court of Appeals for the DC Circuit gave its stamp of approval:
“USI’s proof of disruption damages consisted of statistical and financial data and expert testimony showing that after May 31, 1975 (when USI felt the effect of Blake’s disruptions), its labor costs increased significantly. The increase was shown by comparing labor costs before and after that date. Such comparison of the cost of performing work in different periods is a well-established method of proving damages, which frequently has been used in breach of contract cases.”
How does the Measured Mile work?
The Measured Mile is a method that is designed to create a control period drawn from when labor/material production on the project was at its normal rate. Then, compare that against the time period(s) when the contractor was being negatively affected (i.e., delayed, disrupted, suspended, etc.). So, the control figures come straight from the construction project, when the project is moving along as everyone would have expected.
When you compare a typical day of production on the project versus the amount of production on an affected day, then the difference shows how much the contractor was being impacted.
To have an expert use the Measured Mile method, you will need to sufficiently document your production on the project.
And, although the calculations sound relatively simple, and in theory it is simple, the actual calculations can be much more complicated than they sounds. Effectively using the measured mile approach often requires expert analysis. Expert witnesses and consultants frequently make these assessments and testify about them, when necessary, at a trials, mediations or arbitrations.
If you are looking for a more detailed explanation of how it works, Matt DeVries has a good blog post on the Measured Mile in the context of transportation projects, and one more recent post where he talks about the Measured Mile more generally.
If you find yourself in a situation where you are being impacted in some manner on a construction project and it is causing you to incur costs, then you might be entitled to a claim for this type of damages.
Monday, April 22nd, 2013
This article by attorney Peter Irot appeared on Gentry Locke’s “Virginia OSHA Law News” blog. The “Willful Misconduct” defense in Virginia workers’ compensation law is similar to the “Employee Misconduct” defense in OSHA matters. A workplace injury may lead to both OSHA and workers’ compensation proceedings. Therefore, it is useful to understand the elements and requirements of both defenses — of which there is much overlap.
Something that nearly every Virginia employer will have to consider sooner or later is whether it has a “willful misconduct” defense to a workers’ compensation claim. In fact, many employers and insurers tend to approach most workers’ compensation claims as the result of misconduct, reasoning that if the employee had not been doing something he shouldn’t have, he would not have been injured in the first place.
Virginia workers’ compensation law is more complicated than that. But the savvy employer can help himself by building a willful misconduct defense before the workplace injury occurs by making absolutely sure to: 1) create clear, reasonable safety rules; and 2) strictly enforce those rules.
The section of the Virginia Code (65.2-306) governing willful misconduct reads specifically, “no compensation shall be awarded to the employee . . . for an injury . . . caused by . . . the employee’s willful misconduct.”
Virginia courts have interpreted this sentence to require a high burden for the defense. Negligence—even gross negligence—does not suffice; proving willful misconduct is a matter of showing the employee had a “wrongful intention” to do something he knows is illegal or against his employer’s reasonable safety rules. Making it even more difficult for employers, they bear the burden of proof to show willful misconduct.
Thus, an employee can be completely heedless of safety in general, even endanger others as well as himself, and still incur a compensable injury so long as the employer cannot prove that the employee did not have a “wrongful intention” to violate a law or a reasonable safety rule. Moreover, this “wrongful intention” requires “premeditation” and “determination” to perform the forbidden act.
Proving to a commissioner or judge what existed in an injured employee’s mind to the point of “premeditation” is one of the most difficult tasks workers’ compensation defense attorneys have to tackle. But there are ways the employer can make the defense much easier to prove. Specifically, putting all safety rules in writing and requiring every employee to initial each page of the rules booklet, and sign it at the end with an affirmation that the employee has read and understands the rules, goes a long way to support the defense at a workers’ compensation hearing. It is difficult for an employee to claim ignorance of a rule when confronted with his own initials and signature on the safety rules themselves.
(Side note: employers should be sure to provide the rules in every necessary language. The Virginia Workers’ Compensation Commission will not deprive an employee who only speaks Spanish of compensation for his injury when the only rule book he signed was in English.)
Enforcing the rules is just as important as having rules. The law allows employees to overcome a willful misconduct defense by showing that the rule in question was not “kept alive” by “bona fide enforcement.” Thus, if an employer makes a practice of allowing employees to “skate by” when breaking rules, the employer cannot later rely on those rules to support its defense.
A paper trail helps when enforcing rules. Most attorneys for workers’ compensation claimants obtain relevant safety documents from employers during the course of a claim. The defense is supported by documentation that includes records of employees being disciplined or terminated for violating safety rules.
Accordingly, to be able to rely upon a willful misconduct defense, the savvy employer must have a set of clear and reasonable safety rules that the employer ensures every employee reads, signs, and knows. That same employer will enforce those rules, and keep detailed records of that enforcement. By the time a workers’ compensation claim is made for an accident that could have been prevented by following safety rules, the savvy employer may be able to mount a willful misconduct defense.
Wednesday, March 6th, 2013
Some companies have mistakenly treated workers as independent contractors, as opposed to employees. Once this issue is identified, employers struggle with how to fix the problem without creating bigger problems.
Over the past year, the IRS has offered a voluntary program that provided relief for some employers who have voluntarily chosen to reclassify their workers as employees. The Voluntary Classification Settlement Program (VCSP) has been of limited usefulness because most employers are barred from applying for the VCSP if they have failed to file the required Form 1099s with respect to the workers they are seeking to reclassify, or were under an IRS audit.
On February 27, 2013, the IRS announced that it was revamping and expanding the VCSP. For the next four months (until June 30, 2013), the IRS is waiving the requirement that the employer has to file past Form 1099s, and has also agreed that employers who are under IRS audit may qualify as long as the audit doesn’t involve an employment tax audit. Details of this temporary change are in Announcement 2012-46.
Interested employers can apply for this program by filing Form 8952, Application for Voluntary Classification Settlement Program, at least 60 days before they begin treating workers as employees. Employers accepted into the VCSP will generally pay an amount equaling just over 1% of the wages paid to the reclassified workers for the past year. No interest or penalties will be due, and the employers will not be audited on payroll taxes related to these workers for prior years. Those employers who have previously failed to file Form 1099s will pay a slightly higher amount and there are some additional requirements.
Wednesday, January 30th, 2013
A Contractor’s claim can be worth millions; so, it is sometimes surprising to see how little thought is put into the claim documents. To have a better chance to recover your claim, the claimant Contractor needs proof (hopefully written) to isolate the causes of the claim and the amount of its added costs and work time.
In the Winter 2012 ABA publication The Construction Lawyer, Douglas Oles provided a list of the minimum requirements for claim documentation from the General Conditions for Washington State Facility Construction (check out pages 38-39).
It is quite a list of requirements (requiring much more than most construction contracts), and the list is worth including here because it might provide you with some ideas for items that you might include in your claim. These are also many of the same documents that your construction lawyer will need to prove your claim anyway. Note, however, that the facts and circumstances of your particular project may dictate different requirements than those below.
So, here is the list with my commentary in italics:
- Factual Statement of Claim – A detailed factual statement of the Claim for additional compensation and time, if any, providing all necessary dates, locations, and items of Work affected by the Claim. Describe the facts giving rise to the claim in detail. Tell what happened and include the names of those involved (i.e. the what and who).
- Dates – The date on which facts arose which gave rise to the Claim. (i.e., the when.)
- Owner and A/E Employees Knowledge about Claim – The name of each employee of Owner or A/E knowledgeable about the claim. Let the owner know that its representatives and agents know about the claim.
- Support from Contract Documents – The specific provisions of the Contract Documents which support the Claim. Show the owner that your agreement entitles you to payment for the claim.
- Identification of other supporting information – The identification of any documents and the substance of any oral communications that support the Claim. Provide evidence supporting the claim.
- Copies of Supporting Documents – Copies of any identified documents, other than the Contract Documents, that support the Claim. Attach copies of emails, letters approving work, invoices and other documents supporting claim amounts.
- Details on Claim for Contract Time – If an adjustment in the Contract Time is sought: the specific days and dates for which it is sought; the specific reasons Contractor believes an extension in the Contract Time should be granted; and Contractor’s analysis of its Progress Schedule to demonstrate the reason for the extension in Contract Time. This one requires a word of warning. If you provide this information be sure to state that you reserve the right to have a claims expert or consultant review the Claim and he or she might revise the claim based on their assessment. You don’t want to lock yourself in this early when you have not had a claims expert review the claim.
- Details on Claim for Adjustment of Contract Sum – If an adjustment in the Contract Sum is sought, the exact amount sought and a breakdown of that amount. Again – the same warning here. Include a statement saying that you reserve the right to increase it based on an expert review or gaining more information.
- Statement Certifying Claim – A statement certifying, under penalty of perjury, that the Claim is made in good faith, that the supporting cost and pricing data are true and accurate to the best of Contractor’s knowledge and belief, that the Claim is fully supported by the accompanying data, and that the amount requested accurately reflects the adjustment in the Contract Sum or Contract Time for which Contractor believes Owner is liable. This statement shows that you are swearing to the claim and it shows that the claim is being taken seriously.
