GNYADA August 2016 Newsletter

State Seeks Input from GNYADA on ZEV Program 4

the Javits Center in March that allowed representatives from north- east dealer associations to speak with environmental agencies about the the regional challenges to selling ZEVs. GNYADA is now actively collab- orating with NYSERDA and the Center for Sustainable Energy (CSE), to assure that dealers’ concerns are addressed in the new rebate program. For example, we have urged NYSERDA to work with the DMV to ensure that all program registrants are franchised new car dealers. We will also be asking some of our dealers to test a beta version of the application. The State plans to kick-off New York's rebate program in September, and GNYADA will be providing training to help familiarize dealers with the process. with regard to commissions, interaction with customers, etc., and therefore may be treated as exempt from overtime. The Supreme Court's ruling did not finally decide the issue. It simply found that the lower court had given too much deference to a 2011 opinion reached by the Department of Labor. (The DOL’s opinion in that case found that service advisors should be overtime-eligible because they’re neither salespeople nor mechanics, both of which are overtime-ineligible under the Fair Labor Standards Act.) The case will now return to the 9th U.S. Circuit Court, which will rereview the case.

The dealer must then enter the required information relating to the sale in NYSERDA’s dealer portal, to reserve the rebate funds. The dealer later uploads the transaction documents required for reimbursement. (Specific documents are to be determined.) Upon review and approval, NYSERDA pays the dealer the rebate amount, either by electronic transfer or by check. Dealers should expect payment to be delivered within seven to ten days. GNYADA has been contributing to the State’s clean energy mission since the beginning of the year. In addition to creating an exhibition of 12 Clean Technology Vehicles in Albany outside Governor Cuomo's State-of- the-State address in January, the Association also hosted a meeting at n n Department changed direction in 2011, and the Circuit Court deferred to that new interpretation. The high court’s ruling said the Labor Department's 2011 about-face was done without adequate justification to depart from a long-held precedent; Justice Anthony Kennedy, writing for the majority, described such changes as “arbitrary and capricious.” This legal distinction has been closely monitored by dealer associations, such as NADA and GNYADA, who’ve long asserted the uniqueness of the service advisor role, regarding their usual duties and pay plans. Service advisors may not personally sell vehicles, yet they function very much in a salesperson’s capacity,

GNYADA is working with state regulators on the development of New York's new point-of-sale rebate program for Zero Emission Vehicles. While the NYS Energy Research and Development Authority (NYSERDA) is still ironing out the details (as of this newsletter), the program is expected to function as follows: A dealer wanting to participate in the rebate program will be required to register with NYSERDA. After a customer agrees to purchase or lease a rebate-eligible vehicle, the dealer reduces the contract price by the rebate amount. (Rebate amounts will be announced prior to the program start-date, and different ZEVs will be eligible for different rebates. In addition, only New York State residents will be eligible to receive these rebates.) Dealers may continue treating service advisors and service writers as exempt from overtime pay, under the salesperson, partsperson and mechanic exemption. This per a U.S. Supreme Court ruling that rejected a lower court’s decision that service advisors should receive overtime pay under U.S. labor law. The heart of the dispute is the wording in the Fair Labor Standards Act's overtime provisions that exempts “any salesman, partsman or mechanic primarily engaged in selling or servicing automobiles.” Past appeals court decisions, and the Labor Department itself, have held that service advisors are included in that exemption. But the Labor 5

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Service Advisors Keep OT Exemption (for now)

Greater New York Automobile Dealers Association • www.gnyada.com

The Newsletter • August 2016

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