from the no-disruption-allowed dept
Another day, another example of regulators protecting legacy businesses and trying to shut down quite useful disruptive innovations. Zenefits is an incredibly fast growing company that has become the rather de facto standard for HR software for startups in Silicon Valley. Part of the key? It gives away the software for free — software that, from competitors, costs quite a lot (to the point that many startups don’t adopt HR software until much later in their lifecycle). A great NY Times profile from a few months ago detailed the rise of Zenefits and how its business model developed. In short, Zenefits had started building some online HR software, and was trying to figure out a business model, when it realized that it could give away the software for free and just get commissions by also acting as an insurance broker. The full story is much longer (and fascinating), but here’s a snippet from that profile:
When businesses buy health coverage for their workers, they often go through brokers, who play the role that travel agents once did for the airlines. They are middlemen who figure out the best fit between buyers and sellers of health care, then take a percentage of the sale. And the commissions can be quite hefty. After connecting a small business with a health care provider, a broker collects a monthly fee of about 4 to 8 percent of a company?s health premiums.
The commission rates are set by care providers and aren?t usually disclosed to the small-business purchasers. But the fees amount to several hundred dollars or more per employee annually, and they generally continue for as long as a business keeps its health coverage. The broker collects the monthly fee from the care provider even if the business never talks to its broker again.
?I was thinking, wait a minute, that is a ton of money, and these guys don?t do very much for it,? Mr. Conrad said. This presented an obvious business model for Zenefits. It would become a broker itself. Thanks to the Affordable Care Act, health insurance providers now publish set rates. This meant that Zenefits could offer brokerage online, letting small businesses buy health insurance pretty much the same way people shop for airline tickets.
From there, the “software” just became a hook and a selling point. Yes, it’s still the core of the actual “business,” but it’s just an insanely effective promotion for the insurance brokerage part, which the company has also made super simple. Businesses pay the same exact price they would normally pay for their health insurance — but they get this great HR software as part of the deal (and Zenefits collects the commissions that traditional insurance brokers would have collected for doing much, much less). Of course, as the article also notes, it’s not easy to become a brokerage, but Zenefits put in all of the effort to become a registered insurance broker in various states to make this work — and it’s made the company grow like gangbusters.
And… of course, traditional insurance brokers absolutely hate it. The NY Times article noted that brokers have complained to regulators in four states, including Utah. And that brings us to the latest story. While the investigations in Texas and Washington went nowhere, in Utah, the Utah Insurance Department — which is run by a former insurance broker named Todd Kiser (founder of Kiser Insurance Agency) — has told the company that it has violated a bunch of rules for daring to give its software away for free. Specifically, the Insurance Department calls out [pdf] the fact that the free software somehow violates rules against “inducements” or “rebates” for insurance.
The full letter is an astounding example of regulations designed to protect incumbents over innovators. First it attacks the use of free software, despite the fact that the end result is better for companies:
Zenefits’ providing free software use of its electronic platform and dashboard
violates Utah’s inducement and indirect rebate insurance laws. By Zenefits offering clients the
free use of its electronic platform and dashboard, by which employers can control and coordinate
payroll functions and manage tax-related elections; generate tax forms; access FSA, HSA, and
accounts; and administer 401k retirement savings plans and stock options; Zenefits has
created a significant free inducement for clients to purchase insurance products through Zenefits.
This software use is neither part of the insurance contract nor directly related to the insurance
contract. Also, Zenefits connecting of the various HR benefits and insurance together creates
advantages for customers to have a single internet access site to manage all HR and insurance
needs; however, again, because Zenefits does all of this for free, it creates an violating
inducement and indirect rebate for clients to purchase insurance through Zenefits.
Nowhere does the Insurance Department appear to recognize that it’s basically saying “offering a better product is illegal.” Instead, later in the document, it flat out admits that its goal here is to protect the legacy players who didn’t innovate:
Concerning Utah’s insurance public policy and State interest, the Utah Insurance
Department has the important responsibility to maintain a fair, competitive insurance business
environment for all licensees. Some of the main purposes of the Utah Insurance Code are to
ensure not only that insurance consumers are protected and treated fairly, but that licensees are
also treated fairly within a financially healthy and adequate insurance market that is not only
characterized by innovation, but also by fair conditions of competition for all insurance
licensees. See Utah Code Sec. 31A-1-102. For these reasons, Utah’s specific unfair inducement
and rebating laws are strongly enforced.
In short, disrupting the old way of doing business is illegal, because the non-innovators can’t keep up. The Utah Insurance Department further makes it clear that innovation that offers a better solution for companies who buy insurance is flat out not allowed under Utah law:
Bulletin 2010-7 emphasizes that a licensee that provides a benefit that is not specified in an
insurance contract offered to an insured or potential insured is a violation of state law. This
includes offering benefits not specified in the insurance contract at no cost or at a cost below fair
market value. Also explained is the fact that providing other value added services not specified in
an insurance contract are also insurance violations.
In short: offering insurance buyers a better deal is illegal. The state then says it will fine Zenefits and that the company needs to stop “violating” these rules, and instead come up with a “compliance plan.” Of course, for Zenefits, the only really sensible solution is to not do business in Utah, meaning that Utah-based businesses are objectively (and significantly) worse off. That’s crazy — but it’s the sort of ridiculous regulatory attacks presented to disruptive businesses all too frequently.