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Ethical Contracting: Is Your Museum Doing It?

Category: Alliance Blog
A hand holding a highlighter over a contract
With contract work on the rise, how can museums ensure a good working relationship with independent professionals? A recently released guide provides answers.

The way we work is changing. The growth of the “gig” economy is accelerating in a post-COVID world, as the desirability of freelance work increases for employees seeking flexible schedules and greater autonomy, or who were forced into a career pivot after the past year’s wave of museum furloughs and firings. Yet these workers are often left out of the field-wide conversation on issues like pay transparency and diversity, equity, accessibility, and inclusion (DEAI). How can we ensure this doesn’t happen? What follows are practical steps you can take right now to improve equity in the relationship between independent museum professionals (IMPs) and museums.

Confronted by the challenges of environmental and social justice, closures and financial constraints, the turn to digital, and DEAI, museums across the continent have turned to IMPs to help them rethink their business models, staffing structures, program formats, and community engagements. But few resources exist to guide American museums in finding and working with IMPs, and those that do are scattered, dated, or designed for use in other countries with different vocabularies, legal contexts, and social concerns.

To answer the need for a primer on finding and working with consultants and contractors, the Independent Museum Professional Network, a professional network of AAM, in collaboration with the Association of Registrars and Collections Specialists (ARCS), developed a basic guide that will assist museum staff at all levels to understand, appreciate, and benefit from working with independent colleagues.

Working with Independent Museum Professionals: A Guide to Help Museums Find and Work with IMPs (2021) describes how to engage and collaborate with IMPs across a variety of disciplinary specialties. Perhaps most importantly, it speaks to the need for ethical contracting practices that will benefit both the client and the consultant. The guide offers advice and recommendations from IMPs on how museums can best work with them, which museums are encouraged to consider in the interest of good working relationships.

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Here are some ways you and your museum can start practicing ethical contracting now:

Ensure Transparency in the Hiring Process

From the outset, museums need to be open and fair in structuring the process by which they identify and select IMPs. This begins with an accurate, detailed, and well-defined scope of work, which allows IMPs to assess whether to spend their (unpaid) time and effort to go after a job.

IMPs spend approximately 25 to 35 percent of their time on non-billable hours, which includes creating proposals. If you’ve narrowed down the list of bidders to the final candidates, consider compensating them with a stipend for their proposals.

Other crucial elements of an effective procurement process include explicitly describing the criteria for selection, providing opportunities for Q&A for all prospective bidders, and disclosing the number of consultants invited to bid. Make sure that contract opportunities align with your organization’s DEAI practices by establishing procurement policies and procedures that encourage contracting with locally owned firms as well as minority-, women-, and veteran-owned businesses.

Educate Yourself on Appropriate Compensation

The greatest misunderstanding between museums and IMPs is over fees and rates of pay. Museum staff often compare contractor rates to the salaries of museum employees, forgetting or ignoring the many differences between salaried and self-employed professionals.

In addition to their base pay, salaried staff at museums typically receive around 30 percent in fringe benefits, plus paid sick leave and vacation time. The museum also covers the costs of overhead—workspace, utilities, and insurance. IMPs, in contrast, must cover all these costs themselves. Thus, consultant rates two or three times higher than the going rate for staff salaries are generally closer to equivalent than would appear at first glance.

A lack of understanding regarding fair rates of pay for contract work, particularly for contracts aimed at emerging professionals, often results in rates that do not provide a living wage after deducting the contractor’s expenses, taxes, and benefits. By understanding what a fair rate of pay is for contract work, you and your museum can provide ethical and fair opportunities for all workers.

Disclose Your Project Budget

Whenever possible, museums should include a budget or a budget range for contract opportunities. This may seem counter-intuitive—won’t bidders just submit a bid for the top of the budget range? The answer is no.

Providing at least a budget range up front promotes transparency and equity, in much the same way as including salaries in job announcements. Letting applicants know in advance if the museum’s budget works for them saves the museum from going through the selection process only to find out the bidder can’t accept the offered fee. Sharing the budget ensures that your museum gets only relevant and appropriate responses and increases the number and quality of bids. Otherwise, you could find that all the proposals you receive are above your budget, or you didn’t attract enough qualified candidates and you have to start again.

The other way budget transparency benefits your museum is when you are evaluating proposals. When price is less of a factor, you can focus on who’s the best person for the job instead of who’s the least expensive. And candidates are competing based on value and quality of service (what they can deliver with the funds you have available) rather than price. You get a better sense of how each candidate would use your budget. And you’ll end up with a more successful project.

Re-Think Work for Hire and Confidentiality Clauses

Many museums claim sole ownership of “work for hire,” but this can create an inequitable situation for IMPs, who need to use project-generated materials in their portfolios, websites, social media, etc., as part of growing their independent businesses.

Therefore, when possible, contracts should ensure that all parties have the legal rights to use/reuse materials produced after the contract period. There will certainly be times that the museum will need to retain ownership rights, but in most cases the IMP can retain the rights and grant a non-exclusive license to the client for all purposes in perpetuity.

The same is true for confidentiality clauses. While there are cases where sensitive information needs to remain confidential, you should refrain from including a blanket confidentiality clause in your contract. For each contract, consider what level, if any, of confidentiality is required, and be generous in allowing the IMP to talk about the work they’re doing for you.

Create a More Equitable Contract

Work for hire and confidentially clauses are just one step towards improving equity in contract language. Here are several common issues with contracts for IMPs that you can fix:

  • Write the contract with as little legal jargon as possible so that both parties can understand the terms of the agreement without needing an attorney to “translate” the document.
  • Make the document inclusive by removing gendered pronouns.
  • Instead of automatically including a clause requiring IMPs to retain expensive general liability insurance, for each project consider what insurance, if any, is really necessary, and allow the IMP to pass on insurance costs to the museum as part of their fee.

Understand the Impact of Schedule Changes on an IMP

It’s not uncommon for a project schedule to change or incur a significant delay. When this happens, give the IMP as much notice of change as possible and be transparent. Otherwise, they may lose out on income from work they turned away while expecting their calendars to be booked, and may now need to pass on additional work in order to accommodate the slippage in timing.

Never Ask an IMP to Work for Free

Expecting IMPs to work for free is not only discouraged, but against the policies of many professional organizations, including NAME and the American Institute of Graphic Arts. Work for free can mean:

  • Expecting those who submit proposals for work to have developed extensive plans before being appointed.
  • Asking them to work for free as there is no budget, but saying it will be good for their portfolio.
  • Asking them to work for free but promising payment further down the line.
  • Gradually expanding the scope of work once they have been appointed, without a corresponding increase in budget (aka “scope creep”).

Museums frequently invite an IMP to perform work contingent on funding, e.g., to help with a grant proposal with a promise to hire the IMP if the grant is secured. But be aware of applicable professional guidelines that discourage practitioners from working for free or grants that prohibit retrospective payments.

Fundamentally, these recommendations boil down to the essentials that make any relationship effective—mutual respect and trust. From initial inquiry to completed project, both IMPs and your museum will benefit from an open, transparent, and equitable relationship. Your museum’s close attention to establishing a fair, harmonious relationship, beginning with the suggestions here, will go a long way toward ensuring the success of your project and satisfaction in working with independent professionals. With contracting expected to increase in the coming decade, learning how best to recruit and work equitably with IMPs will, therefore, be a needed and valued skill in museums, large and small.

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