This is the second installment in a five-part feature, The Danger Epidemic in Art Handling, which runs September 2–6 in honor of Labor Day.
Nobody was precisely sure who complained to OSHA about Perrotin’s New York outpost — only that the alleged hazards required an immediate response from the blue-chip gallery. One theory running through the dealer’s office involved an undercover agent from the Department of Labor’s Occupational Safety and Health Administration (OSHA) arriving at the gallery unannounced. Another hypothesis was that a recently fired employee had tipped off the agency in an act of disgruntled revenge. With tensions running high, it seemed almost impossible that someone from within their own ranks would have filed the OSHA report because they genuinely felt unsafe.
But that’s exactly what happened.
Three months ago, an employee delivered their complaint to the federal agency for fear of retribution from upper management; they spoke to Hyperallergic on the condition of anonymity for the same reason.
Years before filing their non-formal complaint with OSHA, the employee had noticed a pattern of bad behavior developing. In the logistics department, morale was low and turnover was high. The employee’s boss quit almost immediately after hiring them. “He was tired of working in a blue-chip gallery environment,” the employee recalled, “which is often demanding without giving much of anything back.”
Some gallerists are known to sometimes push their art handlers to the brink. Regular workdays at Perrotin ended at 6pm, but there were many days when preparators said they had to stay until almost midnight for last-minute installs. And according to the employee who filed the complaint, they weren’t receiving overtime for the extra hours.
When this employee first started working at Perrotin, they would sometimes have six-day workweeks or consecutive 18-hour shifts. Art handlers only started receiving overtime after someone on the gallery’s sales team informed them that they were entitled to the additional pay; it was then that the registrar decided to enact the policy.
But years of declining safety standards worried the employee. According to them, Perrotin had already rolled back their overtime policy, fire exits were often blocked by objects, and offices were incorrectly set up in storage areas. The gallery also failed to exhibit a labor law poster for their workers, which is required of all businesses by federal and state laws. These details were included in the employee’s OSHA report, but when it came time to address these violations they saw little effort from the gallery to improve.
“Almost immediately, the decision was made for the gallery to look good enough to pass an inspection,” recalled the gallery employee. For a non-formal complaint, OSHA contacts the employer, describes alleged hazards, and follows up with a fax or letter. The employer must then respond, identifying any problems found and noting corrective actions taken or planned. If the response is adequate, OSHA will generally forego an inspection. According to an agency spokesperson, Perrotin’s case was reviewed and closed in June after the OSHA area director received a suitable response from the employer.
But after the gallery addressed the May 21 note from OSHA, the employee said conditions almost immediately began deteriorating again. This sort of ambivalence, the worker said, was typical of how upper management dealt with their employees — especially the art handlers. “Whenever the gallery was worried that we would strike, they told us we could all be replaced. I always knew that wasn’t true, but I believe that they did.”
A spokesperson for the gallery responded, confirming that OSHA had addressed potential safety concerns related to a missing labor law poster and blocked egresses in the building. Posters have now been placed in Perrotin’s basement, kitchen, and second floor office.
“We are grateful that OSHA helped us improve the security of our newly renovated building. We took action immediately to address and resolve all issues by May 29,” Perrotin told Hyperallergic by email. “We value open and honest dialogue within our community, so it saddens us that this has never been brought to us directly.”
* * *
It’s unlikely that Perrotin is the only gallery with conditions that may violate OSHA standards, but gallery workers have little incentive to tip off the government agency. That’s because the art world conditions its workers to accept subpar safety standards and low salaries in the name of high culture. And because art handlers frequently hop from institution to institution for jobs, issues are typically handed off to the next wave of workers.
The Department of Labor grants substantial whistleblower protections to informants against dismissals, reduced hours, raise denials, and other forms of retaliation. Yet nobody wants to risk their reputations in an industry where gossip travels fast. And many art handlers have told Hyperallergic that blacklists exist at virtually all of their past and present workplaces. Retaliation like this is unlawful in New York, and can carry up to $20,000 in penalties if courts find the employer responsible.
And there is a general misconception in the art world that salaried employees are exempt from overtime. That is incorrect. As noted by Tana Forrester, a workers’ rights attorney for the law firm Shulman Kessler, exemptions apply to “creative professionals,” which typically includes visual artists, actors, musicians, cartoonists, and some journalists. Despite working in the “art world,” most employees in the industry would not be classified as creative professionals and are thus likely entitled to overtime wages.
“Someone can prove they are entitled to backpay by saving text messages from their bosses, keeping a record of their hours, or providing testimony from themselves and other people,” she explained to Hyperallergic. “What doesn’t count as strongly is what type of contract your employer had you sign. Just because they give you a 1099 and say you are an independent contractor does not mean you are an independent contractor.”
Under the Fair Labor Standards Act (FLSA), courts have their own criteria for determining what employees are owed overtime. Salary levels are important; employees who make over $100,000 are usually exempt while anyone being paid under $23,660 is nonexempt. Courts also look at who sets the parameters of work — who trains employees, determines work techniques, supplies the equipment, and determines the rates and hours of a job.
Forrester also pointed out that art handlers who get injured while working may also be protected by anti-discrimination laws, which protect people with disabilities from being dismissed by employers after an accident. “When galleries fire someone instead of trying to accommodate their injury, that’s discrimination,” she said. “You cannot make assumptions without first engaging in dialogue and understanding that person’s situation. That’s the law, but in the art world these allegations often get swept under the rug.”
Neither the Art Dealers Association of America (ADAA) nor the New Art Dealers Alliance (NADA), membership groups for the country’s leading galleries, currently have specific guidelines pertaining to the hiring, firing, and training of art handlers.
* * *
Despite receiving several injuries as an art preparator, Timothy Bergstrom never thought about contacting OSHA. “When I started art handling 12 years ago, I assumed that I didn’t have any rights,” the art handler explained.
An industry veteran, Bergstrom said that he’s worked in virtually every Chelsea gallery. Around 2007, he started art handling in New York before traveling around the country, using his niche skill set to find employment. When he returned to Manhattan, he noticed employers placing higher demands on art handlers, often expecting them to perform tasks without the necessary manpower. “Major galleries are going through a flux period where they want to downsize their art handling departments,” he told Hyperallergic. “There are never enough people, nobody is experienced, and they often don’t pay well.”
Consequently, Bergstrom has witnessed a spate of serious accidents over the years. Two of the worst injuries he has seen occurred at Gladstone Gallery, where he worked from 2014 to 2016. “It was a hostile working environment and my worst experience in the business,” said Bergstrom.
One case, he recalled, involved a falling sculpture, which crushed the finger of a fellow art handler. But another accident was much worse. The art handling crew was working on an exhibition while another group of construction workers removed an old boiler. As they helped carry pieces of the extremely heavy vessel out of the gallery, something happened. Multiple witnesses told Hyperallergic that a worker was trying to lift one side of the boiler when his grip on the metal slipped. One of the worker’s gloves was stuck to the falling object — and a finger caught in the frictional drag was ripped off his hand.
Seeing this happen in real-time was traumatic for Bergstrom, who after the accident needed to move the remaining boiler parts off to the side to continue his installation job. He later ended his relationship with the gallery, which is run by the art dealer Barbara Gladstone. When Hyperallergic asked, a gallery spokesperson confirmed that the accident occurred but that it did not happen to “an art handler or an employee, so there isn’t really anything to comment.”
Years after, Bergstrom would experience the worst injury of his life working for Harper’s Books. “The gallery had rented us a dinky U-Haul truck to retrieve some work from an artist’s studio,” he recalled. “It was raining, and the loading dock [at the artist’s building] was really wet. The truck bed was two feet off the ground because it didn’t fit into the port. I had to jump down and lift the artwork into the truck, but I slipped off the loading dock and destroyed my shoulder.”
The violent fall had shattered Bergstrom’s shoulder, splitting the bone into fragments and causing a dislocation. Given his professional relationship with his employer, he expected to receive worker’s compensation for the accident, but the insurance never came. Bergstrom decided to sue Harper’s Books in court to prove his employment status in order to receive worker’s compensation, but he ultimately lost his case. He says that the judge ruled he was not entitled to compensation because he was a freelance worker, even though he had steady employment with the gallery for every other month over a yearlong period. And Harper Levine, the owner of Harper’s Books, testified in the trial that he had very little oversight of Bergstrom, an assertion that the art handler still rejects. “This is untrue,” Bergstrom told Hyperallergic, “he was at the gallery instructing my work whenever there was an installation, which comprised the majority of my time with him.”
Geoffrey Schotter, a lawyer focusing on workers’ compensation cases in New York, explained to Hyperallergic that courts have their own system for determining the employment status of a worker, regardless of what type of contract a business has someone sign. These factors include whether or not the worker has set hours, uses the business’ tools, and if the alleged employer has the power to hire and fire. “It’s possible that in this case,” Schotter said, “that as the facts developed in the record, the judge thought he was more of an independent contractor. But the board is usually good at applying their own independent criteria.”
Without health insurance to cover the costs of his injuries, Bergstrom plunged into debt. He maxed out all his credit cards during his slow recovery when he was unable to work. Luckily his wife’s steady job formed a safety net for the couple. Still, he says that he has around $40,000 to $50,000 to pay off in bills related to his injuries.
Responding to Hyperallergic for comment, Levine confirmed details of the Bergstrom’s story but stressed that he was not present for the accident. He sympathized with the art handler but insisted that his gallery was not liable for covering his injuries. “We did everything possible to help the guy,” said the dealer. “If my workman’s compensation policy had been one that covered him, we would have loved to have seen him compensated.”
“He wasn’t employed by Harper’s in any official capacity. He was a contractor as are pretty much all the people who do spot jobs for us,” Levine added. “I harbor no ill will toward him and felt very badly when he was injured.”
After his wounds healed, Bergstrom reluctantly returned to art handling. Like many other preparators, he told Hyperallergic that he had no choice but to stay in the industry because it was where he had made his career; it was his best chance of making enough money to pay off his debts.
Fortunately, he landed a job with another gallery, which he asked Hyperallergic not to name. “You feel respected here,” Bergstrom reflected. “We have enough time, materials, and staff to do everything requested. Time plays the biggest part. Schedules are made far in advance, and our work days start at 9am and end at 5pm. And if management ever asks us to stay later, it’s made very clear that it’s up to you.”
Plus, Bergstrom says the position pays well for gallery work, $28 per hour.
Thinking about how to improve the industry, Bergstrom wishes that art handlers would get more recognition from the art world. “We are the people who make everything look perfect,” he said. “But we aren’t really supposed to be seen because people think it would take the magic out of the art.”
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