WAGENCY automatically certifies artists when they secure W.A.G.E. fees or withhold labor from institutions that decline to pay them according to W.A.G.E. standards. Certified artists must also be prepared to pay equitably those who contribute to producing the content of their artwork – their studio assistants.
When artists hire others to help produce their work, they function in a similar capacity to institutions. They should therefore be responsible for fulfilling a parallel set of expectations from the point of view of those they hire. WAGENCY limits this to the labor performed by artist assistants because, like the labor of artists, there are no existing guidelines or standards for compensation in this area. It is also a crucial link in the supply chain and an important source of income for younger artists.
The power of WAGENCY to alter conditions of non-payment depends on a critical mass of usage by as many WAGENTS as possible, but it is the artists with heightened visibility or economic status who operate its most powerful lever. These artists are better positioned to command W.A.G.E. fees or withhold labor and WAGENCY automatically certifies them when they do. They are also better positioned to pay equitably those who contribute to producing the content of their work. Once certified they are responsible for paying their studio assistants according to W.A.G.E. standards and using the WAGENCY Work Agreement.
Not unlike the variety of institutional models in the nonprofit sector, artists' practices range in form, as do their studios as sites of production. Depending on the employing artist’s income and demand for their work, the studio might be run by a single person or employ tens or hundreds of workers. Depending on the employing artist’s material practice and working method, the workplace might be located in an artist’s home or in a converted industrial space restored to its intended use as a factory. Depending on the level of involvement of the employing artist in the process of production, the degree of contact between assistants and employer can range from highly intimate and familial to remote and instructional.
Different forms of artistic production produce different forms of exploitation. In studios where fabrication takes place in factory-like conditions, assistants might be more likely to experience workplace discrimination, harassment, and health and safety violations. In smaller studios, the more intimate nature of the working relationship might result in assistants being prone to accepting lower pay and the equivalent of Just-in-Time (JIT) scheduling or zero-hour contracts because a friendship has developed with their employer.
Regardless of the number of employees, studio location, or the employing artist’s presence, the issues facing assistants often replicate the issues experienced by artists when they work with institutions. These include the devaluation and underpayment of highly skilled labor, the exchange of exposure or social connections for work, and the unremunerated provision of content.
The creative contribution of assistants also raises complicated questions about authorship. Assistant positions are commonly filled by other artists who may have been hired because their artwork has relevance to their employer's own art practice. But because assistants are waged workers they usually receive no direct benefit from the profit generated by increases in the market value of the work they contributed to making. The degree to which assistants contribute to producing content for the employing artist is difficult to measure, but it is clear that the field does not regard assistants as co-producers or co-authors and does not reward them financially as such.
The intimacy of knowledge-sharing coupled with social engagement inside and outside the studio casts assistants in a supporting role that is often both intellectual and emotional. An assistant’s job title might be Studio Manager but the work is likely to pivot around supporting the employing artist in making their artwork. This could begin with its conception, carry through the process of fabrication, and end in the oversight of its installation in a gallery, museum, or private collection. The decisions an assistant makes throughout this process on behalf of their employer, whether supervised or unsupervised, constitute a critical and underrecognized dimension of contemporary art production.
In spite of the uniquely complex nature of this relationship, the issues that arise in the studio workplace mirror those of workers in other fields, including inequitable treatment based on race, gender, and ability; severe health and safety concerns; and unreliable work schedules. Obstacles to worker empowerment are also similar. Fear of retaliation or of being easily replaced by others just as desperate for work precludes advocating for better conditions and pay.
Assistants also share what is perhaps one of the most pervasive problems in the contemporary labor market: misclassification of work. Determining whether or not an assistant is an independent contractor (1099) or an employee (W-2) has significant implications for each party. For the assistant, it can mean underpayment of wages, lack of benefits, and increased exposure to certain kinds of risks. For the employing artist, it can result in fees and penalties. It can also leave them open to claims on intellectual property should there be a dispute: independent contractors have the potential to claim legal joint authorship of artwork, a right that employees do not have.
The IRS has made specific guidelines available to determine the correct classification, but these criteria are not usually referenced by employers or assistants. The WAGENCY Work Agreement integrates the IRS' directives and has been designed to help both parties come to a shared understanding and decision about how an assistant's labor should be classified.
The criteria for this analysis and for WAGENCY's guidelines were derived in part from a series of long-form interviews conducted in New York in 2017 with persons who have or were then working as artists’ assistants, in addition to conversations with artists who were then employing assistants. The collection of individual accounts was crucial in locating common needs and outlining best practices to help both parties navigate the inherent power dynamics of the workplace while creating mutually sustainable relationships between artists and their assistants.
The WAGENCY Work Agreement was designed to help employing artists and their assistants determine a set of comprehensive and equitable terms upon which to engage in a working relationship.
It guides both parties through a series of eleven clauses, outlining how each might impact a determination of the assistant's tax classification according to IRS guidelines. Deciding if an assistant is an independent contractor (1099) or an employee (W-2) has significant implications for each party. Misclassification of workers can result in fees and penalties for the employer. The Work Agreement can be initiated by either the employing artist or assistant.
Employing artists who are also Certified WAGENTS are required to use the Work Agreement when hiring assistant labor along with W.A.G.E.'s minimum payment standards. If you are an assistant and want to know if the artist hiring you is a Certified WAGENT, you can search for them here.
When WAGENTS engage their labor with institutions, they don't wait for institutions to offer arbitrary fees. Instead, they initiate the use of W.A.G.E. standards by sending Fee Requests to institutions. The WAGENCY Work Agreement uses the same logic: W.A.G.E. encourages assistants who are also WAGENTS to initiate the Work Agreement's use with their employing artist.
Below are the required minimum pay rates for general artist assisting in two capacities. They reflect an estimated living wage calculus for New York City, which currently ranks as having the highest cost of living in the U.S., and where there is a high concentration of artists and artist assistants. To determine an equivalent living wage in another region please start with MIT's Living Wage Calculator.
Artist Assisting Starting Rate: $25/hour minimum
Managerial Positions Starting Rate: $30/hour minimum
When the employing artist and assistant discuss and agree upon an equitable rate, they should consider other factors, including previous experience, if there are special skills required or being offered, duration of work, regularity of agreed-upon work, number of hours worked per week, whether it is part-time or full-time, hourly or salaried, what benefits the employer can offer if the assistant is classified as an employee, or what the assistant will need to take on if classified as an independent contractor. In addition to a salary or hourly pay, some artists implement agreements to pay their assistant(s) a percentage of the sale of artworks to which they have contributed. All of these factors, as well as others, are accounted for in the WAGENCY Work Agreement.
Employing artists should advocate for equitable pay for their assistants when working in an institutional setting. Assistant labor must be understood by institutions as a cost of production in the mounting of exhibitions which is not the responsibility of the exhibiting artist. However, cases may arise in which outside labor may conflict with in-house staff responsibilities and hours. These should be carefully negotiated to ensure that assistants do not displace or reduce the hours of existing institutional workers.
Suggested rates for assisting an employer during exhibition installation are budgeted for a 10-hour day. For example, an individual whose install rate is set at $35/hour would suggest the institution budget for a day rate of $350. Rates are higher to reflect the additional expense of being away (if applicable), working more demanding hours, and to acknowledge assistants' specialized skills and knowledge of their employers’ work. Travel, lodging, and per diem(s) for the installing assistant(s) are typically budgeted in addition to the day rate.
The employing artist's role in collecting and withholding taxes will depend on worker classification. If it has been determined that the assistant is an employee (W-2), the employing artist will be responsible for collecting and filing half of the assistant's Social Security and Medicare taxes (FICA).
The employing artist's obligation to provide benefits for things like insurance, pension plans, paid vacation, sick days, and disability insurance will also depend on worker classification. The IRS notes that businesses generally do not grant these benefits to independent contractors, but the lack of these types of benefits does not necessarily mean the worker is an independent contractor. The WAGENCY Work Agreement includes a list of possible benefits that the employing artist can provide.
As required by the Affordable Care Act (ACA), the IRS has outlined the requirements for mandating an employer to provide healthcare. In summary, the IRS states that the "vast majority of employers fall below the ALE (Applicable Large Employer) size threshold and therefore are not subject to the employer shared responsibility provisions." The ALE size threshold is generally 50 full-time employees including full-time equivalent employees. A comprehensive Q&A about the Employer Shared Responsibility Provisions Under the Affordable Care Act can be found here.
Assistants who face harassment and/or discrimination in the workplace are rarely in a position to resolve these issues one-on-one with their employer. In such cases, a third party is needed to facilitate an intervention.
Because artists’ studios most often lack a Human Resources department there are few options available for individuals who need support. One resource for workers who believe that they are facing discrimination and/or harassment is the website for the U.S. Equal Employment Opportunity Commission (EEOC). Workers can contact the EEOC for a confidential conversation about how to proceed and inquire about the possibility of filing a discrimination charge.
For residents of New York City, the NYC Commission of Human Rights offers many resources. The New York City Human Rights Law prohibits discrimination in the workplace. Through the NYC Commission on Human Rights, employees who are being discriminated against can explore enforcement options through the Commission’s Law Enforcement Bureau.
With all processes and materials, employing artists are responsible for creating a safe working environment (compliant with state law) for the individuals who work with them. Employers can request a consultation with the Occupational Safety and Health Administration (OSHA) to ensure that their workspace is compliant with health and safety standards. Employees who are faced with unsafe working conditions can file a report with OSHA. For assistants working in New York, the NY Dept of Labor: Division of Health and Safety Code Rules is a useful resource.