upholding fee award where basis for award could be discerned from record
How later courts described this case
- upholding fee award where basis for award could be discerned from record
Written by the judges who cited it.
The opinion
FAIRCHILD, Senior Circuit Judge,
dissenting in part.
I agree that the Plan formula for calculating credits for a part-time employee does not comply with Sec. 411(b)(3)(B).
A Plan need not, under subparagraph (C), provide for credit for a part-time employee with less than 1,000 hours (about 22 weeks) of service during a year. 1 For service beyond that, subparagraph (B) requires that the formula provide not less than a ratable portion of the accrued benefit for full-time employment.
This Plan does not define full-time employment. Even if it specified 52 weeks, however, its formula for part-time service would provide less than a ratable portion for persons with more than 26 weeks but less than 35 weeks of service. One with 27 to 34 weeks of service would have to receive more than the one-half year’s credit allowed by the Plan in order to get a portion “not less than ratable.”
In its present form, the Plan may be construed as defining full-time employment as 35 weeks, since it awards full credit at that point. If 35 weeks be deemed full-time employment, it would follow that, however detailed the steps in the formula, one with 22 weeks of service must receive at least ^/ssths of one year’s credit, one with 25 weeks must receive at least 5 /7ths, and one with 30 weeks must receive at least % ths.
It is clear that the Plan must be modified, but I do not agree that the court should specify any particular complying formula. I note, moreover, that there are instances where the formula set forth in Part IV of the majority opinion fails to provide not less than a ratable portion unless full-time employment be defined as at least 39 weeks, e.g., if 23 be divided by any number less than 39, the quotient exceeds .6.
I am also of the opinion that the allowance of attorneys’ fees should be reduced. The implied accrual formula, dealt with in Part III of this court’s opinion, appears to be the most significant victory of the class members before the district court, and we are reversing that part of the decision.
Except for the foregoing, I concur.
. Under 29 C.F.R. § 2530 .200b-3(e)(l)(ii), each week of employment is the equivalent of 45 hours of service.