Disrupting Employee Health Insurance

December 18, 2014

A recent New York Times rumination about running a small business, employee health insurance and the apparent inevitability of higher cost and compromised benefits wound around to this somewhat plaintive reflection:

Yet, I have a feeling that somewhere there has to be better thinking and insight about the health insurance mess.

That is where a lot of small business owners are on the subject of employee health insurance right about now. But that urge for better thinking and insight is the power that fuels business disruption. Enter Zenefits, as if on cue.

Zenefits has been described as 2014’s hottest new startup. The company gives away cloud-based human resources software and lets businesses purchase insurance through their platform. Zenefits charges the businesses nothing for the software and nothing for the purchase.

It makes money by charging a commission to the health insurance companies who sell the policies, and it appears to be quite successful, with year-end revenue projected to be 20 times what it was at the beginning of 2014. Zenefits focuses particularly on the small employer market. In California, it is the top broker for Anthem Blue Cross for companies with fewer than 50 employees.

This is the software-as-service business model that observers have seen many times before with Uber, Airbnb, or the less familiar Nestdrop, which delivers medical marijuana to patients’ homes in Los Angeles. Zenefits also, quite predictably, has found itself in hot water with industry regulators, like the Utah Insurance Department, which claims that the company is violating Utah’s rebates and inducement law by giving away its software for free.

Where does this go from here?  Will Zenefits’s software be the solution to the “insurance mess” that small and mid-sized businesses have searched for, or will Zenefits morph into the uncool, unregulated, ethically challenged industry bully that Uber seems to be becoming? Is Zenefit’s businesses model actually disruptive in the sense that, although initially targeted at less profitable customers, it will eventually take over and devour an entire industry? And what about the risk that it presents to the entrenched insurance industry. Is there a risk of backlash?

What Zenefits Offers

HR Software

Through its free software, Zenefits offers a very comprehensive menu of HR functions. These include:

  • Attendance Management,
  • Benefits Management,
  • Compensation Management,
  • Compliance Management,
  • Employee Database,
  • Employee Lifecycle Management,
  • Employee Self Service,
  • Notifications,
  • Onboarding,
  • Payroll Management and
  • Vacation/Leave Tracking.

It also offers a number of non-core HR functions, including:

  • 360 Degree Feedback,
  • Communication Management,
  • Performance Appraisal,
  • Recruiting Management,
  • Succession Planning and
  • Training Management.

The latter are not free, and 85 percent of customers ignore them. The great divide seems to be between services that are necessary for legal compliance and those that are not.

The early word on the software, at least the free portion, is that it works remarkably well. Zenefits’s major competitor in the HR software field is often seen as Workday, but Workday’s target market appears to be larger employers, and it does not act as an insurance broker.

Brokerage Services

Insurance brokers identified the Affordable Care Act as a business opportunity from the beginning, and that is the way Zenefits actually makes its money. It is licensed in 50 states and does business in 47 of them. Once it has been authorized by the employer as a broker, Zenefits can make the insured portion of the benefits package very easy to manage, as well as the rest of HR functions.

Traditional brokers can’t compete with the client base Zenefits can build with the free, easy, quality software and service. According to Paul Mifsud, founder and chief executive of Melita Group, an insurance and HR firm in Santa Clara,  “Every broker in the country is scared now of Zenefits.”

From the employer’s perspective, what Zenefits sells is convenience. The insurance, itself, is not necessarily cheaper, but the time and attention that managing employee health insurance requires of the small or medium-sized business is a big part of the stress factor.

What the Naysayers Say

Criticism of Zenefits’s practices, at least so far, seems to come from two sources: traditional brokers who are being squeezed out of the market and Utah’s Insurance Department, although other state insurance regulators may ultimately become involved as well.

Traditional brokers point to the lack of a personal relationship with employers and the relatively remote nature of employee service. Zenefits handles most contact through e-mail and a call center.

To be fair, although most of the core services seem relatively mechanical, it is difficult to see how some other non-core functions, like succession planning could be handled remotely. Even having an error in a relatively routine piece of information like a mis-entered address in a database can be difficult and frustrating when working with a call center.

The business responses have been varied. Some brokers have sought unsuccessfully to partner with Zenefits or are in the process of developing competing HR software of their own. Others have clearly taken up their cause with state insurance commissioners.

Utah’s claim is that the free software amounts to a rebate prohibited under Utah insurance law. The Insurance Department is demanding not only that Zenefits cease Utah operations and pay a fine of $97,000, but that it stop advertising that it offers free HR cloud management services and charge a “fair market value” for its services to ensure fair competition with other insurance licensees in the state. That, of course, would eliminate Zenefits’s incentive to be in Utah in the first place. It is not entirely clear, at this point whether Zenefits may legally operate in Utah.

The Future of Zenefits’s Business Model

In order to be disruptive, a new business model has to take over an industry, and in order to do that, it has to be cost effective and high quality.

There is nothing particularly revolutionary about the insurance brokerage business. What makes Zenefits such a fierce competitor at the moment is the free, high-quality HR software it can afford to give away. Building a client base with a wonderful freebie is also not necessarily a revolutionary idea. Magic Decoder Rings did wonders for breakfast cereal once upon a time.

Cloud technology, which brings the price down to a point where Zenefits can afford to give it away and also permits rapid change, is certainly a revolutionary and disruptive force. It is also something that Zenefits’s competitors will figure out how to use for their own benefit in short order.

The Quality Challenge

That would leave the quality of the software as Zenefits’s distinguishing competitive advantage. It may also be the company’s Achilles heel.

Fifty-state legal compliance, especially at a time when states are the drivers of change in employment law, is a very tall order. This is especially true for a company that only 12 months ago had fifteen employees. Hours for sick leave payment purposes in California, for example, are not necessarily counted in the same way as hours for determining exempt status in New York, and either could change when the legislature comes back into session. Multiply that for every state and consider the breadth of the legal issues that could be involved. Compliance is not impossible, but it may be labor intensive.

One high-profile employer suit against Zenefits for a software error that resulted in employer liability under state law could take the shine off the company’s current star power. Maintaining the luster could be exacting and expensive.

The Regulatory Challenge

The other great risk may come, as it has already begin to emerge, from state departments of insurance.  This aspect of Zenefits’s future development may be very much like what Uber and Airbnb have faced, with very mixed success.

Much of the coverage of Utah’s challenge to Zenefits seems to take for granted that protection of entrenched local interests is a major motivator. There is no particular reason to expect other state legislatures to be more open to innovation, absent lobbying efforts on the part of small employers interested in higher quality, if not cheaper, employee health insurance options.

Can Zenefits make the argument that its business model is so different that it should not be regulated in the way that other state-licensed insurance brokerages are regulated? That remains to be seen, and the challenge in each state. where one is raised, may be different. It has not necessarily worked well for other disruptive innovators who very often, after a protracted legal battle, simply decide that it is easier to comply with state regulations.

If Zenefits can maintain the quality of its free HR software to build the client base for its brokerage services it might truly change the face of the human resources consulting industry. Its business model could also change the face of the market for employer-based insurance under the Affordable Care Act, by adding the concept of “affordable” back in and banishing the perpetual specter of compromised benefits.

If better thinking, insight and a healthy dollop of disruptive technology can bring about that result for small and mid-size employers struggling to offer insurance to employees, it would be very welcome.



Anne Wallace is a New York lawyer who writes extensively on legal and business issues. She also teaches law and business writing at the college and professional level. Anne graduated from Fordham Law School and Wellesley College.

Get Business Legal Updates

Please provide your full name.
Please provide a valid email address.
We respect your privacy, and we will never share your information. Unsubscribe at any time.

Related Publications

Recently, I was reading an article in the New York Times on a potential epidemic where the workload and expectations put on school children across the country is causing a massively high amount of stress, anxiety, and even childhood depression. In fact, even very young kids are going to the doctor because of stomach ulcers….

January 5, 2016
Legally Sound Smart Business cover art

Legally Sound Smart Business

A business podcast with a legal twist

Legally Sound Smart Business is a podcast by Pasha Law PC covering different topics in business advice and news with a legal twist with attorneys Nasir Pasha and Matt Staub.
Apple Podcast badge
Google Podcast badge
Spotify Podcast badge

Latest Episodes

November 21, 2023

In this episode, Nasir Pasha and Matt Staub explore the legal implications of Artificial Intelligence in the business world. They delve into the most talked-about issue of 2023: AI and its impact on the legal landscape. Although AI isn’t necessarily a new topic, it has many unanswered questions in the legal world. Nasir and Matt…

July 12, 2023

In this episode, Attorney Nasir Pasha and Attorney Matt Staub delve deep into the complexities of mass layoffs and offer valuable insights, real-life examples, and practical advice to employers grappling with the aftermath of such challenging situations. Nasir and Matt emphasize the critical importance of effective communication when executing mass layoffs. They stress the need…

January 9, 2023

As the COVID-19 pandemic swept across the globe, businesses scrambled to adapt to the new reality it presented. In this blog post, we dive into the case of Goldman Sachs, a financial services giant, to examine their response to the crisis and the lessons other businesses can learn from their return-to-office strategy. From prioritizing employee…

October 28, 2022

Full Podcast Transcript NASIR: Finally, my two favorite worlds have collided – both the law and the chess – right here at Memorial Park in Houston, Texas. Windy day. We have some background noise – ambient noise. What are the two worlds that collided? Well, Hans Neimann has sued Magnus Carlsen for defamation in one…

September 26, 2022

Through a five-round championship bout, Matt travels to Texas from California to determine which state is better for business. Will it be a knockout with a clear winner or will it go to the scorecards?

July 7, 2022

Whether you are buying or selling a business, the transaction goes through the same steps. However, they are viewed from different perspectives. Sellers may not want to fully disclose all the blind spots while Buyers will want otherwise. Nasir and Matt battle it out in this Buyer vs. Seller to determine who has the advantage!…

May 12, 2022

When it comes to Restrictive Covenants, employers are fighting to keep their company safe while employees may use them to their advantage. Keep listening to find out if the Employer or the Employee wins this battle. Round 1: Trade Secrets A company’s trade secrets encompass a whole range of information and are one of the…

February 14, 2022

The Supreme Court rejected the nation’s vaccine mandate. Businesses with 100 or more employees are NOT required to have their employees vaccinated or go through weekly testings. However, this policy remains in effect for health care facilities. In this episode of Legally Sound | Smart Business, the team sat down to discuss their thoughts on this ruling.

December 1, 2021

In this episode of Legally Sound | Smart Business by Pasha Law PC, Nasir and Matt cover the Business of Healthcare. There is more to the healthcare industry than just doctors and nurses. Many Americans have health insurance to cover their yearly needs, but most Americans are not aware of what really goes on behind…

October 12, 2021

In our latest episode, Nasir and Matt are covering the legal issues on Social Media. The average person spends most of their day on social media, whether they are scrolling for hours or publishing their own content. However, just because you publish your own content on Instagram does not equate to you owning that image….

September 28, 2021

What is a Non-Disclosure Agreement, and when do I need one? In this episode, Nasir and Matt shares why you need to use Non-Disclosure Agreements, basic facts about NDA’s, and discuss about the infamous Jenner-Woods story. Having the right Non-Disclosure Agreement in place not only protects you and your business, but it also makes the…

June 16, 2021

Covered in this episode of Legally Sound Smart Business are some typical business mistakes blunders small businesses often make and how to avoid them. Blunder #1: Copying and pasting agreements It may sound like a good idea at the time, but this blunder comes with hidden pitfalls. Having an attorney draft terms that are specific…

February 4, 2021

How you terminate an employee can make the difference between a graceful transition to avoidable negative outcomes like a dramatic exit or even a lawsuit. We gathered a panel of experts and asked them – is there a “right way” to fire an employee? We would like to thank our guests for this episode: Amr…

December 2, 2020

The COVID-19 pandemic has turned nearly every aspect of life on its head, and that certainly holds true for the business world. In this episode, Matt and Nasir explain how the early days of the pandemic felt like the Wild West and how the shifting legal playing field left a lot open to interpretation and…

November 16, 2020

After plenty of ups and downs, our buyer has finally closed on the purchase of their business. While we’re marking this down in the ‘wins’ column, it never hurts to review the game tape. In this final episode, our hosts, Matt Staub and Nasir Pasha, return to the deal almost a year later to reflect…

September 15, 2020

The ink is drying on the signature line and things are looking great for our buyer. After so much hard work, the finish line is in sight and the cheering within ear shot.   Though the landlord is still serving friction, things seem safe to move forward and for now, our buyer will be keeping…

July 31, 2020

Though things are coming along well, the journey would not be interesting if it was purely smooth sailing. After our buyer opens escrow, they are forced to push the closing date back when suddenly a letter from an attorney was received claiming the business, we are buying has a trade mark on the name!  Now…

June 12, 2020

With frustration at an all-time high and professionalism at an all-time low, our friend the Buyer has “had it” with the Seller and quite frankly their lack of knowledge. At present our Buyer is rightfully concerned that the latest misstep from our loose-lipped Seller will threaten not only the entire operation of the businesses but…

May 11, 2020

As we go deeper into the buying process, we start to uncover more challenges from our seller and encounter some of the wrenches they are tossing our way. When we last left off in episode three our team was knee deep in due diligence for our buyer, had already penned and signed the Letter of…

April 4, 2020

One word–interloper! When a new mysterious broker enters the transaction and starts to kick up dust, Nasir and Matt take the reins. The seller signed off on the letter of intent (see episode 2), yet this “business broker” serves only friction and challenges by refusing to send financials, whilst demanding more of a firm commitment…

April 4, 2020

Just as most stories and deals start out, everyone is optimistic, idealistic and full of hope for clear skies. It’s a perfect outlook with a perfect setup for the ups and downs yet to come. Peek further behind the curtain and into the first steps of buying a business: the letter of intent. After the…

April 4, 2020

When a savvy buyer hears opportunity knocking to purchase a prime positioned business, she decides not to go it alone and taps in the professionals to help navigate what could potentially be a fruitful acquisition. “Behind the Buy” is a truly rare and exclusive peak into the actual process, dangers, pitfalls and achievements, that can…

August 7, 2019

GrubHub is subject to two “matters of controversy” that have likely become common knowledge to business owners: “fake” orders and unfriendly microsites.

May 28, 2019

In this podcast episode, Matt and Nasir breakdown the legal issues of the subscription industry’s business on the internet. Resources A good 50-state survey for data breach notifications as of July 2018. California Auto-Renewal Law (July 2018) Privacy Policies Law by State Why Users of Ashley Madison May Not Sue for Data Breach [e210] Ultimate…

March 12, 2019

In recording this episode’s topic on the business buying process, Matt’s metaphor, in comparing the process to getting married probably went too far, but they do resemble one another. Listen to the episode for legal advice on buying a business.

December 3, 2018

Nasir and Matt return to discuss the different options available to companies looking to raise funds through general solicitation and crowdfunding. They discuss the rules associated with the various offerings under SEC regulations and state laws, as well as more informal arrangements. The two also discuss the intriguing story about a couple who raised over…

July 24, 2018

Flight Sim Labs, a software add-on creator for flight simulators, stepped into a PR disaster and possibly some substantial legal issues when it allegedly included a Trojan horse of sorts as malware to combat pirating of its $100 Airbus A320 software. The hidden test.exe file triggered anti-virus software for good reason as it was actually…

April 17, 2018

Attorneys Matt Staub and Nasir Pasha examine Mark Zuckerberg’s congressional hearings about the state of Facebook. The two also discuss Cambridge Analytica and the series of events that led to the congressional hearings, the former and current versions of Facebook’s Terms of Service, and how businesses should be handling data privacy. Full Podcast Transcript NASIR:…

March 10, 2018

The Trump presidency has led to a major increase in ICE immigration enforcement. It’s critical for business owners to both comply with and know their rights when it comes to an ICE audit or raid. Nasir, Matt, and Pasha Law attorney Karen McConville discuss how businesses can prepare for potential ICE action and how to…

February 5, 2018

New years always bring new laws. Effective January 1, 2018, California has made general contractors jointly liable for the unpaid wages, fringe benefits, and other benefit payments of a subcontractor. Nasir and Matt discuss who the new law applies to and how this affects all tiers in the general contractor-subcontractor relationship. Click here to learn…

January 2, 2018

With a seemingly endless amount of new mattress options becoming available, it is unsurprising that the market has become increasingly aggressive. As companies invest in more innovative solutions to get in front of customers, review sites, blogs and YouTube videos have moved to the forefront of how customers are deciding on their mattresses and how…

December 7, 2017

In recent months explosive amounts of high profile allegations of sexual harassment, assault, and varying acts of inappropriate behavior have transcended every sector of our professional world. With a deluge from Hollywood and politics, and the private workforce, accusations have inundated our feeds and mass media. This harassment watershed has not only been felt within…

November 16, 2017

If you are not familiar with the EB-5 program started in 1990 to give green cards to certain qualified investors in the United States, then you may not have been alone a few years ago. Currently, the EB-5 program has since exploded since its inception and now hits its quotas consistently each year. The program…

October 10, 2017

Government requests come in multiple forms. They can come in as requests for client information or even in the form of investigating your company or your employees. Requests for Client Information General Rule to Follow Without understanding the nuances of criminal and constitutional law and having to cite Supreme Court cases, any government requests for…

August 24, 2017

Nasir and Matt suit up to talk about everything pertaining to employee dress codes. They discuss the Federal laws that govern many rules for employers, as well as state specific nuances in California and other states. The two also emphasize the difficulty in identifyingreligious expression in dress and appearance, how gender-related dress codes have evolved…

June 28, 2017

Nasir and Matt discuss the life cycle of a negative online review. They talk about how businesses should properly respond, how to determine if the review is defamatory, the options available to seek removal of the review, how to identify anonymous reviewers, whether businesses can require clients to agree not to write negative reviews, and…

June 7, 2017

On this episode of the Ultimate Legal Breakdown, Nasir and Mattbreak down social media marketing withguests Tyler Sickmeyer and Kyle Weberof Fidelitas Development. They first discuss contests and promotionsand talk about where social media promotions can go wrong,when businesses are actually running an illegal lottery, and the importance of a soundterms and conditions. Next, they…

April 3, 2017

On this episode of the Ultimate Legal Breakdown, Nasir and Matt go in depth with the subscription box business. They discuss where subscription box companies have gone wrong(4:30), the importance of a specifically tailored terms and conditions(6:30), how to structure return policies (11:45), product liability concerns (14:45),the offensive and defensive side of intellectual property (19:00),…

February 1, 2017

Nasir and Matt discuss the suit against Apple that resultedfrom a car crashed caused by the use of FaceTime while driving. They also discuss howforeseeable use of apps can increase liability for companies. Full Podcast Transcript NASIR: Hi and welcome to Legally Sound Smart Business! I’m Nasir Pasha. MATT: And I’m Matt Staub. Two attorneys…

January 5, 2017

The guys kick in the new year by first discussing Cinnabon’s portrayal of Carrie Fisher as Princess Leia soon after her death, as well as other gaffes involving Prince and David Bowie. They alsotalk about right of publicity claims companies could be held liable for based on using someone’s name or likeness for commercial gain.

December 22, 2016

Nasir and Matt discuss the recent incidentat a Victoria’s Secret store where the store manager kicked out all black women after one black woman was caught shoplifting. They then each present dueling steps businesses should take when employees are accused of harassment.

December 8, 2016

Nasir and Matt return to talk about the different types of clients that may have outstanding invoices and how businesses can convert unpaid bills to getting paid.

November 10, 2016

After a long break, Nasir and Matt are back to discuss a Milwaukee frozen custard stand that is now revising it’s English only policy for employees. The guys also discuss how similar policies could be grounds for discrimination and what employers can do to revise their policies.

October 6, 2016

The guys discuss the new California law that allows actors to request the removal of their date of birth and birthdays on their IMDB page and why they think the law won’t last. They also discuss how age discrimination claims arise for business owner.

September 29, 2016

Nasir and Matt discuss the racial discrimination claims surroundingAirbnb and how it’s handled the situation. They also discuss some practical tips for businesses experiencing similar issues.

September 8, 2016

Nasir and Matt discuss whyAmazon seller accounts are getting suspended and banned without notice and how business owners can rectify this situation through a Corrective Action Plan.

August 25, 2016

Nasir and Matt talk about the accusations surroundingfashion giant Zararipping off the designs of independent artists like Tuesday Bassen and howsmaller companies can battle the industry giants.

August 18, 2016

Nasir and Matt discuss Brave Software’s ad replacing technology that has caught the eye of almost every national newspaper and has a potential copyright infringement claim looming. They also welcome digital marketing expert Matt Michaelree to speak on the specifics of what Brave is attempting to do and whether it has the answers moving forward.

July 28, 2016

Nasir and Matt discuss the sexual harassment lawsuit filed by Gretchen Carlson against Fox CEO Roger Ailes. They also talk aboutthe importance of sexual harassment training and properly handling such allegations in the office.

July 15, 2016

Nasir and Matt talk about the changes at Starbucks that have led to many disgruntled employees and customers.

We represent businesses.
That’s all we do.

Oh, and we love it.

We love our work. We love reviewing that lease for your new location. We thrive on closing that acquisition that nearly fell through. We’re fulfilled when we structure a business to grow, raise capital, and be legally protected.

We focus on developing close relationships with our clients by being like business partners. A partner who provides essential, personalized, proactive legal support.

We do all of this without utilizing the traditional billable hour model. You pay for the value we bring, not the time spent on calls, emails, and meetings.

Our team is made up of attorneys and staff that share these values and we are retained by clients who want the same.

Pasha Law PC operates in the states of California, Illinois, New York, and Texas.

Meet Our Team

Fractional General Counsel Services

Pasha Law Select offers the expertise of a high-end general counsel legal team for every aspect of your business at a fixed monthly rate. Pasha Law Select is deliberately designed to allow our legal team to be proactive, to anticipate, and to be comprehensive in serving our clients. To be great lawyers, we need to know our clients. We can’t know our clients unless we represent a select number of clients in the long-term. This is Pasha Law Select.

Learn More