Museum Administration and Employment Law in 2020

December 16, 2020

By Sabrina Soffer

The Brookings Institute national survey estimates losses of 2.7 million jobs and more than $150 billion in sales of goods and services for creative industries nationwide, representing nearly a third of all jobs in those industries and 9% of annual sales.^[1] In addition to suffering from prolonged closures and lost revenue, during these difficult times museums in particular are facing intense scrutiny from the voices within, the museum workers.^[2]

After months of being closed, museums nationwide have been making the hard decisions of letting off staffers and closing departments. Major museums, commercial galleries and other art businesses across the US have all made extensive layoffs, often nearly 25% of their staff.^[3]

The Philadelphia Museum of Art told The New York Times in August that it would be laying off 85 employees, in addition to 42 who had accepted voluntary separation agreements, cutting the museum’s employees by about 23 percent, a spokesman for the museum said.^[4]

After reopening in September, the Philadelphia Museum declared its plans to close again on November 20, 2020 and furloughed even more staff.^[5] The New Museum, in New York, laid off 18 of the 41 furloughed employees in June — nearly a third of its workforce.^[6]

As a quick recap, on March 12, the Metropolitan Museum of Art (the Met) closed its doors when two employees began showing symptoms of Covid, and on March 13, the Museum announced they would be temporarily closed to slow the spread of COVID-19.^[7] March 13 was a crucial date in New York, when all museums shuttered their doors. Subsequently, the Met laid off 79 employees and furloughed an additional 181. In total The Met laid off about 20 percent of their staff since March.^[8]

Can unions help?

In the wake of these developments some museums are turning to the creation of Unions, as employees strive to negotiate long term contracts that will afford them benefits as the pandemic continues to loom.

Employees of the Boston Museum of Art, one of the oldest public art museums in the country which was founded in 1870, announced in November of 2020 that they voted yes to unionization.^[9]

Unions in the museum industry are on the rise, with employees taking action amongst themselves to form a union. At the Philadelphia Museum of Art this meant taking part in a vote through The American Federation of State, County and Municipal Employees, the largest trade union of public employees in the United States. Every local union has to be under the leadership of a larger entity, in this case the AFSCME. The National Labor Relations Board oversees union elections, if the workers decide to petition the NLRB. Usually after workers go public with an intent to unionize, they ask their employer, the museum, to voluntarily recognize the union with a supermajority of signed union authorization cards. If the museum does not voluntarily recognize the union, they petition for election under the NLRB. ^[10] The “wall to wall” union, spanning across all departments, was created at the Philadelphia Museum of Arts this way.^[11]

Prominence of Unions and the Power of Collective Bargaining

After 1985, union density in the public sector stayed roughly even, standing at 35.9% in 2012. In the private sector, however, the figure was down to 6.6%, less than a fifth of what it had been in 1945 and only half of what it was as recently as 1985. Overall, the percentage of wage and salary workers in unions declined to 11.3%.^[12]

However, there is an upward trend of unionizing in the museum industry, across varying departments even before the COVID pandemic began. Most museum unions have taken their cues from the Metropolitan Museum of Art who now has five separate unions, spanning different departments, since its first one was created and recognized in 1970.^[13] The New Museum, the Solomon R. Guggenheim Museum, the Museum of Tolerance in Los Angeles, and the Frye Art Museum in Seattle have all formed unions in 2019.^[14] The movement for creation of a union and recognition of that union by employers has continually been on the rise. On November 22, a group of workers from Los Angeles’s Museum of Contemporary Art across multiple departments—exhibitions, education, communications, and audio-visual—pushed for union status and on December 6, 2019 MOCA LA said it would voluntarily recognize the union.^[15]

Some have opined that museum staffers are recognizing the benefits of collective action in bringing to light unfair business practices in the museum industry, as well as increasing wages. The cost of living and working in cities has been on the rise for years and museum workers are standing up to labor practices that have fallen by the waist side. Instagram accounts @cancelartgalleries and @changethemuseum have been publishing numerous stories about unfair labor practices, and low wages.^[16] The latter also called for “No Museum October” in order to protest and hope to enact change. Unions are needed now more than ever in order to start the conversation with the museum in a way that harmonizes both of their interests, through negotiation. In this moment, unions are formed as a way to shift the workplace culture by including diversity, and equality.^[17]

Basics of Union Law

The ability to unionize was given to workers by the National Labor Relations Act, in 1935 in order to allow workers to negotiate for pay and hours that would allow them to live off the salary. The act was originally meant to improve the working conditions of the industrial sectors (i.e. auto, rubber, and steel). After is enactment the union became a prominently used tool in collective bargaining, which performed impressively after World War II, more than tripling weekly earnings, in manufacturing between 1945 and 1970, gaining for union workers security against old age, illness and unemployment, and through contractual protections, greatly strengthening their right to fair treatment in the workplace.^[18] However, in the 1970s’ union membership dwindled as factories closed, and technology deregulated the industries. The National Labor Relations Act (“NLRA” or “the Act”) a.k.a. The Wagner Act (named for the senator, Robert F. Wagner, who wrote the bill) established the rights of employees to organize, join, or assist labor unions and to participate in collective bargaining through their representatives.^[19] The NLRA effectively got rid of the “yellow-dog contract” which required employees to forgo joining a labor union in order to gain employment. The Act prevents employers from engaging in unfair labor practices and penalizes those who discriminate against employees for engaging in practices themselves.^[20] Lastly, it set up a permanent three-member (which turned into five) National Labor Relations Board with the power to hear and resolve labor disputes, which would streamline conflicts between employers and employees.^[21] The act was designed to prevent more strikes and walk-outs in the workforce so that the entire company did not have to be shut down.^[22] More generally, unions want more certainty.^[23]

The Recent Unionization Wave

While there was already a trend toward museum unionization in all departments in late 2019, the COVID pandemic which includes extensive layoffs and furloughs has only exacerbated the increase in unions, and the need for negotiation and conversation with employers.

The following key examples demonstrate both the struggle to unionize and the impact of a union once formed. At the New Museum, there is a strong and affirmative union base, after forming their union early last year by petition to the NLRB and elections.^[24] They formed their union under the larger union of The International Union, United Automobile, Aerospace and Agricultural workers of America, which also represents the MET. In fact, the union is suing the museum for mass furloughs of those engaged in unionizing and negotiation, and for the refusal to bargain in good faith with the union concerning the furloughs.^[25] However, the union seems to have been somewhat successful, as 23 of the 41 workers who were furloughed have been called back, and the museum has offered to lower the threshold for health benefits so that all regular employees who work 20 hours a week or more can be eligible for coverage.^[26]

At the Museum of Natural History, the employees’ union is suing the Museum for invasive health screening measures, the refusal to furnish the union with information about how they chose this method, and refusal to bargain about the return to work, including again a claim of bad-faith bargaining.^[27] The Museum of Natural History chose a COVID screening application capable of only smartphone use, and the app shares the data from this survey with the employers.^[28] If an employee is unable to access the app and or the survey says that one cannot come into work that day he/she will be docked pay. The Museum has refused to negotiate a better implementation for return to work. These two similarly situated unions will show what employees have to look for in the future from their employers, which is the refusal to give information they need to engage in collective bargaining. This tactic helps effectively control the union by not giving them the information they need.

On August 6, 2020, at the height of the pandemic, workers at the Philadelphia Museum of Art voted yes to unionize as the Philadelphia Museum of Art Union (PMA Union), in affiliation with the American Federation of State, County and Municipal Employees District Council 47 (AFSCME DC 47).^[29] The PMA Union becomes one of the largest unionized museum workforces in the country and the first wall-to-wall union in any major US museum; meaning it is representative of employees across all departments and services.^[30] An article on the Philadelphia Museum of Arts portrays unions in a light most wish to be considered in. One that works to the benefit of the museum, not as hostile entities, but groups that wish to communicate and collaborate with the museum in harmony and to safeguard their place because they value their position that much.^[31] The union’s website says employees “are unionizing out of a love of the arts, the museum, and each other.”^[32]

They also join major art museums with unionized staff, including the Museum of Modern Art, New York; the San Francisco Museum of Modern Art; the Brooklyn Museum; The Metropolitan Museum of Art; and many others.^[33]

What are “Retaliation” Rights?

As the NLRA indicates, an employee cannot be fired (i.e. retaliated against) for joining a union and exercising their legal rights under the union’s capacity. The case that the New Museum mounted included a violation of these rights, alleging that the museum furloughed and laid off members of the collective bargaining unit, and that this was done purposely.^[34] An employer also cannot retaliate, or discriminate against an employee if they take legal leave, like under the Family Medical Leave Act one can take 12 weeks of leave for reasons listed under the act.

A total of 12 workweeks of leave during any 12-month period is allowed for one or more of the following:

1. Because of the birth of a son or daughter of the employee and in order to care for such son or daughter;
2.  Because of the placement of a son or daughter with the employee for adoption or foster care;
3. In order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.

Because of a serious health condition that makes the employee unable to perform the functions of the position of such employee.^[35]

Knowing the Difference Between being an Independent Contractor and Full Time Employee

Last but not least, it is important for all museum workers to understand the difference between being an Independent contractor and a full-time employee, because different benefits will be awarded based on that distinction. Especially during the COVID pandemic independent contractors are exceedingly being let go. Independent Contractors are usually not entitled to benefits that an employee gets (i.e. overtime pay).

The general rule is that an individual is an independent contractor if the payer has the right to control or direct only the result of the work and not what will be done and how it will be done.^[36] One is not an independent contractor if they perform services that can be controlled by an employer. This applies even if the individual can exercise freedom of action. What matters is that the employer has the legal right to control the details of how the services are performed. One must look for the employee-employer relationship and any sort of contractual relationship.^[37] Unemployment benefits were typically not offered to independent contractors. However the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) aims to expand benefits to independent contractors and the self-employed.^[38]

Additionally on September 22nd, the US Department of Labor issued a proposed rule that offered employers further guidance on whether workers should be classified as employees or independent contractors under the Fair Labor Standards Act.^[39] The proposed rule looks at the “economic realities” of the relationship. The main question is whether the worker is “economically dependent” on the employer for work and therefore should be considered an employee.^[40] A worker who is an “entrepreneur,” and controls his own work and schedule is an independent contractor.^[41] Importantly if the profit and losses of the arrangement fall on the individual himself it is likely they are an independent contractor.

For more resources check out https://collectionsoncontract.com/, which is a website that collects data on museum workers that are independent contractors, which they find is more likely than not the status of museum employees.

Laws that Govern Fair and Equal Treatment as an Employee

(1) Fair Labor Standards Act (FLSA)

The FLSA was passed in 1938, under President Roosevelt’s New Deal, to help curb the effects of the Great Depression. The FLSA regulates two of the most important measures in employment law: the right to a minimum wage and overtime pay (time-and-a-half) for certain workers who work more than 40 hours in a given workweek. This law defines two different classes of employees in relation to overtime and minimum wage: exempt and non-exempt. Employees can be exempt from both minimum wage and overtime pay, exempt from overtime pay only, or partially exempt from overtime pay. Non-exempt employees (who are typically paid hourly) are entitled to overtime pay and minimum wage provisions.^[42] An employee must look at the list of exempt employers quite carefully.

(2) Title VII of the Civil Rights Act of 1964: Equal Employment Opportunity

Title VII was passed as part of the Civil Rights Act in 1964, under President Lyndon B. Johnson, at the height of Civil Rights Reform in America. Title VII prohibits discrimination with regard to any term, condition, or privilege of employment based on particular characteristics, or “protected classes.”^[43] This law prohibits discrimination in employment decisions and actions (including recruiting, hiring, training, promoting, transferring, disciplining, and discharging, among others) on the basis of on race, color, religion, sex (including gender and sexual orientation), or national origin. Title VII also created the Equal Employment Opportunity Commission (EEOC), the federal agency that enforces civil rights laws in workplace discrimination. A good starting point in filing a workplace discrimination complaint would be with the EEOC.

(3) Lily Ledbetter Fair Pay Act

In January 2009, The Ledbetter Fair Pay Act, was signed into law by President Barack Obama and amended Title VII of the Civil Rights Act. The Fair Pay Act was sponsored by Senator Barbara Mikulski and named after a worker’s rights activist and equal pay advocate, who was engaged in a nine-year legal battle for equal compensation from her employer. She lost her case in the Supreme Court because she had missed the 180-day window to file a pay discrimination claim. The Fair Pay Act added an important provision that the 180-day window to take legal action against an employer for pay discrimination restarts with each paycheck affected by that discriminatory action. One must also be a member of a protected class which Title VII covers (race, gender, sex etc.). The main purpose in passing this law was to extend the statute of limitations to bring legal action for pay discrimination, because it is likely that the employee does not know she is being underpaid until she openly talks about it with her co-workers, without this act it might be too late to get any recourse. ^[44]

More layoffs and furloughs are coming as a second wave of the pandemic wreaks havoc on the museum industry, and they are forced to close once again. The trend toward unionization is the start of a movement, as more museum workers are likely to advocate for union membership.

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Endnotes:

1. Brookings Institute, Lost Art: Measuring COVID 19’s Devastating Impact on America’s Creative Economy (August, 11, 2020). ↑
2. Margaret Carrigan, Cancel Art Galleries? Staff take grievances against employers to Instagram, The Art Newspaper (Sept. 15, 2020). ↑
3. Margaret Carrigan, With Unemployment at an Historic High, America’s art workers band together, The Art Newspaper (Sept. 4, 2020). ↑
4. Julia Jacobs, Met Shrinks Staff Again, Totaling 20 Percent Cut, N.Y. Times (Aug. 6, 2020). ↑
5. Hakim Bishara, In Abrupt Announcement, Philadelphia Museum of Art Closes and Furloughs Staff, Hyperallergic (Nov. 20, 2020). ↑
6. Hakim Bishara, Brooklyn Museum Lays Off 29 Workers: New Museum Lays Off 18, Hyperallergic (July 8, 2020). ↑
7. Ongoing Coverage of COVID-19’s Impact on the Art World, Artsy Editorial (March 13, 2020). ↑
8. Id. ↑
9. Zachary Small, Employees at the Museum of Fine Arts, Boston Vote to Unionize, N.Y. Times (Nov. 23, 2020). ↑
10. Philadelphia Museum of Art Union, Workers at the Philadelphia Museum of Art vote to unionize in historic landslide win, Press release (Aug. 6, 2020). ↑
11. Id. ↑
12. G. William Domhoff, The Rise and Fall of Labor Unions in The U.S., Who Rules America? (Feb. 2013). ↑
13. Catherine Wagley, Museum Workers Across the Country Are Unionizing. Here’s What’s Driving a Movement That’s been Years in the Market, Artnet News (Nov. 25, 2019). ↑
14. Id. ↑
15. Id. ↑
16. Carrigan, supra note 3. ↑
17. Wagley, supra note 13. ↑
18. Domhoff, supra note 12. ↑
19. National Labor Relations Act, 19 U.S.C. §158 (1935). ↑
20. Id. ↑
21. Id. ↑
22. Encyclopedia.net, Wagner Act (Updated Dec. 11, 2020). ↑
23. G. William Domhoff, The Rise and Fall of Labor Unions in the U.S., Who Rules America? (Feb. 2013). ↑
24. New Museum Union (accessed Oct. 15 2020). ↑
25. Nancy Kenney, Union Accuses New Museum of ‘Discriminatory’ Layoffs and Furloughs, The Art Newspaper (Aug. 10, 2020). ↑
26. Id. . ↑
27. Union District Council 37 v. American Museum of Natural History, No. 02-CA-265257 (N.L.R.B. 2020). ↑
28. Id. ↑
29. Philadelphia Museum of Art Union, Workers at the Philadelphia Museum of Art vote to unionize in historic landslide win, Press release (Aug. 6, 2020). ↑
30. Eric Morse, Why Employees at the Philadelphia Museum of Art are Unionizing, Art Museum Teaching (July 17, 2020). ↑
31. Id. ↑
32. Id. ↑
33. Supra note 7. ↑
34. Kenney, supra note 25. ↑
35. Family Medical Leave Act, 29 U.S.C. §2601 (1993). ↑
36. United States Department of Labor, Misclassification of Employees as Independent Contractors. ↑
37. Internal Revenue Service, Independent Contractor Defined (Last Updated Sept. 23, 2020). ↑
38. Charles Danziger & Thomas Danziger, What Happens to My Health Insurance if My Gallery Furloughs Me? + Other Questions About Employment in the COVID Era, Answered by Lawyers, ArtNet News (May 28, 2020). ↑
39. Jennifer Faroldi Kogos, Department of Labor Publishes Proposed Rule on Independent Contractor Status, National Law Review (Sept. 30, 2020). ↑
40. Id. ↑
41. Id. ↑
42. United States Department of Labor, Handy Reference Guide to the Fair Labor Standards Act. ↑
43. The Civil Rights Act, §7, 42 U.S.C. §2000 (1964). ↑
44. Lily Ledbetter Fair Pay Act, 42 U.S.C § 2000 (2009). ↑
45. ↑

About the Author:

Sabrina Soffer is a Fall 2020 Legal Intern at the Center for Art Law. She is currently a second year law student at St. John’s University School of Law. She has an undergraduate degree from Binghamton University in Politics Philosophy and Law and Art History. She hopes to continue on the art law path and pursue a career in Intellectual Property transactional work.