New York State healthcare policymakers have always had a lukewarm relationship with for-profit providers. While in some sectors the for-profit provision of care is common (e.g., nursing homes and home care), in others, there are few to no for-profit providers (e.g., hospitals and primary care clinics). In fact, some in the industry are under the impression that in some areas of healthcare the State has actually prohibited for-profit providers (for the most part it hasn’t, although the scope of state regulation can sometimes create that impression). At the same time, there is more and more public scrutiny of not-for-profit providers, and as not-for-profit mega-systems continue to grow in New York and elsewhere it is sometimes difficult to distinguish them from for-profit enterprises in many ways.
Certainly, both for-profit and not-for-profit providers can be driven by a real sense of mission, and even the most mission-driven not-for-profit needs to be conscious of the bottom line (the oft-heard refrain being, “no margin, no mission”). Thus, patients and potential employees in search of a mission-focused entity need to scrutinize both types of providers in some detail when looking for care or employment. Similarly, new providers selecting the model they want to use need to take into account the unique characteristics of both models.
There is another model which might afford providers, patients and employees exactly the right mix of mission focus and profit-driven efficiency they are looking for. While it has not received much attention in New York State healthcare to date, the worker cooperative model, in which the employees are the owners, provides an interesting alternative. Article 5-A of the New York Cooperative Corporation Law (“CCL”) was enacted in 1985 to promote the creation of worker cooperatives and provide a means by which businesses may be democratically controlled and operated by their own workers. The legislature expected that cooperative ownership would result in increased economic benefits to the worker owners, as well as the creation of new jobs (CCL § 80).
New York permits the formation of for-profit worker cooperatives to conduct any lawful business. The model has been used in a variety of industries, including child care, cleaning, consulting, education, media, and restaurants (an interesting list can be found here), and it has been actively supported by the administration of New York City Mayor Bill DiBlasio (see here). However, it is uncommon in the healthcare space – while the model was pioneered by a home health care agency based in the Bronx with more than 2,000 worker owners that says that it is the largest worker cooperative in the nation, it is not in wide use. Nonetheless, under the right circumstances, it offers some intriguing possibilities.
Any corporation organized under the New York Business Corporation Law (BCL) may elect to become a worker cooperative by so stating in its certificate of incorporation or amending it (CCL § 82). The election may be revoked by an amendment approved by two-thirds of the cooperative’s members (CCL § 86). Curiously, a worker cooperative may not be classified as a non-profit or not-for-profit corporation (CCL § 83); thus, a worker cooperative is inherently a for-profit enterprise.
Members are individuals who are employed by the cooperative and own voting stock in the form of one membership share each (CCL §§ 81, 88). All full- and part-time employees are offered membership after completing a probationary period. The cooperative issues membership shares for a fee, the amount and payment terms of which are set in the by-laws (CCL § 88). The certificate of incorporation or by-laws establish the qualifications for acceptance and termination of members (CCL § 88). Only membership shares have voting power, except that non-member stockholders (apparently stockholders who are not workers and who owned stock at the time of the corporation’s election to become a cooperative) may vote on amendments to the certificate of incorporation that would adversely affect their rights as stockholders (CCL §§ 88, 89).
Members receive wages and profit distributions at the end of the calendar or fiscal year of the cooperative. Profits are allocated to members on the basis of their “patronage”, a defined term meaning the amount of work performed by a member measured in accordance with the certificate of incorporation and by-laws. Profits are apportioned based on the ratio of each member’s patronage to the total patronage of all members during the applicable period of time. Profit distributions may be in cash, credits, written notices of allocation or capital stock issued by the cooperative (CCL § 90). The cooperative may establish a system of internal capital accounts to reflect the book value and determine the redemption price of membership shares (CCL § 92).
The majority of the board of directors of the worker cooperative must be members, although non-members may serve on the board. Non-members may serve as president, first vice president and other officers. The by-laws contain the governance provisions for the worker cooperative, including election, terms, classification and removal of directors and officers consistent with the CCL or the BCL (CCL § 91).
A host of unique legal and practical issues are created by the model in general, and by its use in healthcare, in particular. For instance, how is the confluence of employment and ownership handled for purposes of licensure and certificate of need? Thus far, the Department of Health has been willing to limit character and competence review to board members only, but that may change if the model were to proliferate. Similarly, the termination of a sufficiently large group of employees would presumably trigger certificate of need review if those employees represented 10% or more of the ownership of the provider. In regard to practical concerns, a worker cooperative needs to be very careful in choosing the right leadership – it is a rare corporate executive who possesses the necessary business acumen, but is still comfortable in a setting where his/her employees are, in a very real sense, his/her bosses.
In spite of these challenges, the worker cooperative model may be attractive in settings with a union workforce, where it would represent the next step in the empowerment of workers. Or, it might serve as an alternative to unionization for a non-unionized workforce looking to become more active. But either way, it changes the traditional dynamics of the employer/employee relationship – and requires careful consideration before implementation.
If you have any questions about the worker compensation model in the context of healthcare, please do not hesitate to contact Marty Bunin at 646-329-1982 or mbunin@farrellfritz.com or Mark Ustin at 518-313-1403 or mustin@farrellfritz.com.