(a)
A franchisee seeking to establish or modify its retail labor rate, retail parts rate, or both, to determine a reasonable warranty reimbursement schedule shall, no more frequently than once per calendar year, complete the following requirements:
(1)
The franchisee shall submit in writing to the franchisor whichever of the following is fewer in number:
(A)
Any 100 consecutive qualified repair orders completed, including any nonqualified repair orders completed in the same period.
(B)
All repair orders completed in any 90-consecutive-day period.
(2)
The franchisee shall
calculate its retail labor rate by determining the total charges for labor from the qualified repair orders submitted and dividing that amount by the total number of hours that generated those charges.
(3)
The franchisee shall calculate its retail parts rate by determining the total charges for parts from the qualified repair orders submitted, dividing that amount by the franchisee’s total cost of the purchase of those parts, subtracting one, and multiplying by 100 to produce a percentage.
(4)
The franchisee shall provide notice to the franchisor of its retail labor rate and retail parts rate calculated in accordance with this subdivision.
(b)
For purposes of subdivision (a), qualified repair orders submitted under this subdivision shall be from a period occurring not more than 180 days before the submission. Repair
orders submitted pursuant to this section may be transmitted electronically. A franchisee may submit either of the following:
(1)
A single set of qualified repair orders for purposes of calculating both its retail labor rate and its retail parts rate.
(2)
A set of qualified repair orders for purposes of calculating only its retail labor rate or only its retail parts rate.
(c)
Charges included in a repair order arising from any of the following shall be omitted in calculating the retail labor rate and retail parts rate under this section:
(1)
Manufacturer, manufacturer branch, distributor, or distributor branch special events, specials, or promotional discounts for retail customer repairs.
(2)
Parts sold, or repairs performed, at wholesale.
(3)
Routine maintenance, including, but not limited to, the replacement of bulbs, fluids, filters, batteries, and belts that are not provided in the course of, and related to, a repair.
(4)
Items that do not have individual part numbers including, but not limited to, nuts, bolts, and fasteners.
(5)
Vehicle reconditioning.
(6)
Accessories.
(7)
Repairs of conditions caused by a collision, a road hazard, the force of the elements, vandalism, theft, or owner, operational, or third-party negligence or deliberate act.
(8)
Parts sold or repairs performed for insurance
carriers.
(9)
Vehicle emission inspections required by law.
(10)
Manufacturer-approved goodwill or policy repairs or replacements.
(11)
Repairs for government agencies or service contract providers.
(12)
Repairs with aftermarket parts, when calculating the retail parts rate, but not the retail labor rate.
(13)
Repairs on aftermarket parts.
(14)
Replacement of or work on tires, including front-end alignments and wheel or tire rotations.
(15)
Repairs of motor vehicles owned by the franchisee or an employee thereof at the time of the repair.
(d)
(1)
A franchisor may contest to the franchisee the material accuracy of the retail labor rate or retail parts rate that was calculated by the franchisee under this section within 30 days after receiving notice from the franchisee or, if the franchisor requests supplemental repair orders pursuant to paragraph (4), within 30 days after receiving the supplemental repair orders. If the franchisor seeks to contest the retail labor rate, retail parts rate, or both, the franchisor shall submit no more than one notification to the franchisee. The notification shall be limited to an assertion that the rate is materially inaccurate or fraudulent, and shall provide a full explanation of any and all reasons for the allegation, evidence substantiating the franchisor’s position, a copy of all calculations used by the franchisor in determining the franchisor’s position, and a proposed adjusted retail labor rate or retail parts rate, as
applicable, on the basis of the repair orders submitted by the franchisee or, if applicable, on the basis provided in paragraph (5). After submitting the notification, the franchisor shall not add to, expand, supplement, or otherwise modify any element of that notification, including, but not limited to, its grounds for contesting the retail labor rate, retail parts rate, or both, without justification. A franchisor shall not deny the franchisee’s submission for the retail labor rate, retail parts rate, or both, under subdivision (a).
(2)
If the franchisee agrees with the conclusions of the franchisor and any corresponding adjustment to the retail labor rate or retail parts rate, no further action shall be required. The new adjusted rate shall be deemed effective as of the 30th calendar day after the franchisor’s receipt of the notice submitted pursuant to subdivision (a).
(3)
In
the event the franchisor provides all of the information required by paragraph (1) to the franchisee, and the franchisee does not agree with the adjusted rate proposed by the franchisor, the franchisor shall pay the franchisee at the franchisor’s proposed adjusted retail labor rate or retail parts rate until a decision is rendered upon any board protest filed pursuant to Section 3065.4 or until any mutual resolution between the franchisor and the franchisee. The franchisor’s proposed adjusted rate shall be deemed to be effective as of the 30th day after the franchisor’s receipt of the notice submitted pursuant to subdivision (a).
(4)
If the franchisor determines from the franchisee’s set of repair orders submitted pursuant to subdivisions (a) and (b) that the franchisee’s submission for a retail labor rate or retail parts rate is substantially higher than the franchisee’s current warranty rate, the franchisor may request, in writing, within 30
days after the franchisor’s receipt of the notice submitted pursuant to subdivision (a), all repair orders closed within the period of 30 days immediately preceding, or 30 days immediately following, the set of repair orders submitted by the franchisee. If the franchisee fails to provide the supplemental repair orders, all time periods under this section shall be suspended until the supplemental repair orders are provided.
(5)
If the franchisor requests supplemental repair orders pursuant to paragraphs (1) and (4), the franchisor may calculate a proposed adjusted retail labor rate or retail parts rate, as applicable, based upon any set of the qualified repair orders submitted by the franchisee, if the franchisor complies with all of the following requirements:
(A)
The franchisor uses the same requirements applicable to the franchisee’s submission pursuant to paragraph (1) of
subdivision (a).
(B)
The franchisor uses the formula to calculate retail labor rate or retail parts as provided in subdivision (a).
(C)
The franchisor omits all charges in the repair orders as provided in subdivision (c).
(e)
If the franchisor does not contest the retail labor rate or retail parts rate that was calculated by the franchisee, or if the franchisor fails to contest the rate pursuant to subdivision (d), within 30 days after receiving the notice submitted by the franchisee pursuant to subdivision (a), the uncontested retail labor rate or retail parts rate shall take effect on the 30th day after the franchisor’s receipt of the notice and the franchisor shall use the new retail labor rate or retail parts rate, or both, if applicable, to determine compensation to fulfill warranty obligations to the franchisee
pursuant to this section.
(f)
When calculating the retail parts rate and retail labor rate, all of the following shall apply:
(1)
Promotional reward program cash-equivalent pay methods shall not be considered discounts.
(2)
(A)
The franchisor is prohibited from establishing or implementing a special part or component number for parts used in warranty work, if the result of the special part or component lowers compensation to the franchisee below that amount calculated pursuant to this section.
(B)
This paragraph does not apply to parts or components that are subject to a recall and are issued a new special part or component number. This paragraph does not prohibit a franchisor from changing prices of parts in the ordinary course of
business.
(g)
When the franchisor is compensating the franchisee for the retail parts rate, all of the following shall apply:
(1)
If the franchisor furnishes a part to a franchisee at no cost for use in performing warranty obligations, the franchisor shall compensate the franchisee the amount resulting from multiplying the wholesale value of the part by the franchisee’s retail parts rate determined pursuant to this section.
(2)
If the franchisor furnishes a part to a franchisee at a reduced cost for use in performing warranty obligations, the franchisor shall compensate the franchisee the amount resulting from multiplying the wholesale value of the part by the franchisee’s retail parts rate determined pursuant to this section, plus the franchisee’s cost of the part.
(3)
The wholesale value of the part, for purposes of this subdivision, shall be the greater of:
(A)
The amount the franchisee paid for the part or a substantially identical part if already owned by the franchisee.
(B)
The cost of the part shown in a current franchisor’s established price schedule.
(C)
The cost of a substantially identical part shown in a current franchisor’s established price schedule.
(h)
When a franchisee submits for the establishment or modification of a retail labor rate, retail parts rate, or both, pursuant to this section, a franchisee’s retail labor rate or retail parts rate shall be calculated only using the method prescribed in this section. When a franchisee submits for the establishment or modification of a
retail labor rate, retail parts rate, or both, pursuant to this section, a franchisor shall not use, or require a franchisee to use, any other method, including, but not limited to, any of the following:
(1)
Substituting any other purported repair sample for that submitted by a franchisee.
(2)
Imposing any method related to the establishment of a retail labor rate or retail parts rate that is unreasonable or time consuming, or require the use of information that is unreasonable or time consuming to obtain, including part-by-part or transaction-by-transaction calculations or utilization of the franchisee’s financial statement.
(3)
Unilaterally calculating a retail labor rate or retail parts rate for a franchisee, except as provided in subdivision (d).
(4)
Using a franchisee’s sample, submitted for establishing or increasing its retail parts rate, to establish or reduce the franchisee’s retail labor rate or using a franchisee’s sample, submitted for establishing or increasing its retail labor rate, to establish or reduce the franchisee’s retail parts rate.
(i)
A franchisor shall not do any of the following:
(1)
Attempt to influence a franchisee to implement or change the prices for which the franchisee sells parts or labor in retail repairs because the franchisee is seeking compensation or exercising any right pursuant to this section.
(2)
Directly or indirectly, take or threaten to take any adverse action against a franchisee for seeking compensation or exercising any right pursuant to this section, by any action including, but not limited to, the
following:
(A)
Assessing penalties, surcharges, or similar costs to a franchisee.
(B)
Transferring or shifting any costs to a franchisee.
(C)
Limiting allocation of vehicles or parts to a franchisee.
(D)
Failing to act other than in good faith.
(E)
Hindering, delaying, or rejecting the proper and timely payment of compensation due under this section to a franchisee.
(F)
Establishing, implementing, enforcing, or applying any discriminatory policy, standard, rule, program, or incentive regarding compensation due under this section.
(G)
Conducting or threatening to
conduct nonroutine or nonrandom warranty, nonwarranty repair, or other service-related audits in response to a franchisee seeking compensation or exercising any right pursuant to this section.
(3)
This subdivision does not prohibit a franchisor from increasing prices of vehicles or parts in the ordinary course of business.
(j)
As used in this section, a “qualified repair order” is a repair order, closed at the time of submission, for work that was performed outside of the period of the manufacturer’s warranty and paid for by the customer, but that would have been covered by a manufacturer’s warranty if the work had been required and performed during the period of warranty.