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Info You Can Use: Revise Your View Of Contracts

I don’t regularly crosspost about things I have written on Arts Hacker. I sort of feel like I am cheating readers by trying to make one post do double duty on two websites.

However, I have a post today about a session on contracts conducted by the partners at GG Arts Law at the recent Arts Midwest conference.  As I mention in that post, contracts and legal issues always seem to be a concern for arts managers. I have attended multiple conferences in different regions and contracts and law sessions are always well attended, even if they deal with the exact same subject matter as the year before.

What grabbed me about this session was that Brian and Robyn from GG Arts Law started by telling attendees to shift their thinking about why contracts exist and what they are used for.  On television and in the movies, we often see someone suffering under the constraints of a contract they signed and perhaps they get saved by some obscure provision on the bottom of page 731.

While that might be closer to reality for big corporations, it isn’t really applicable on the scale most arts organizations operate on.

Which isn’t to say it doesn’t happen or people don’t try. I believe it was Brian from GG Arts Law that related a story about a contract that was being translated from Spanish where the person was only going to translate part of the contract because they intended to spring a “gotcha!” on the other party using the contents of the untranslated portion.

What Brian and Robin tried to convey was that contracts should be used to memorialize the details of an agreement at the end of a conversation rather than be used at the start of a conversation.  If someone follows up an inquiry by immediately sending their contract, don’t be afraid to start taking notes or marking it up with the changes you want. There are no iron-clad, non-negotiable industry standards no matter how much people may swear there are.

Even though people are often intimidated by contracts or see it as a bludgeon with which to enforce behavior, that isn’t really what it is for.

Take a look at my post and give the concepts there some serious thought. It may change your whole relationship with the contracting process.

There will be two other posts about contracts coming up on Arts Hacker. The second should appear on Wednesday and is a continuation of my goal to provide general information about contracts. The third is more focused on collaboration and commission contracts and will appear at some point in the future.

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Non-Profit Arts Version Of “The Talk”

From what I have been reading, the new Fair Labor Standards Act regulations regarding overtime pay is going be pretty tough for non-profit arts organizations to handle. If you aren’t up on the news, the salary threshold part of the overtime exemption criteria will rise from $23,660 to $47,476. Anyone making less than that or who doesn’t meet the other criteria for exemption will need to be paid overtime.

Generally, most of the criteria hasn’t changed so the big issue for non-profits is the salary threshold. Last month, American Theatre did a pretty good job of covering how the new rules will impact theaters specifically. There have been articles about non-profits in general, but few that discussed how arts organizations were planning to address the change.

The reason I say this new requirement is going to be tough is because some of the comments of the interviewees made me cringe. One person mentioned the benefit of staffing their organization with young 20-somethings to take advantage of the fact they would still be living at home and under their parents healthcare. Another respondent estimated the cost of living in their anonymous mid-size Midwest city was $20,000/year which I suspect is misinformed. The lowest costs of living, even for small Midwest cities, I found hovered around $25,000.

While I cringed at some of the tactics people were generating to deal with the projected expense they were going to incur, I didn’t view them as particularly extraordinary. The alternative approaches being considered are absolutely typical of the problem solving process arts organizations engage in. This is the sort of unorthodox creativity you have to employ to pull things off in the non-profit arts.

The problem is that depending on stop-gap measures and pressure of organizational culture will no longer be viable in the face of this new salary threshold and expectations of a work-life balance that new employees are bringing to the workplace. The gulf will literally and figuratively be too wide to straddle.

This is going to be one of those situations that is going to result in a lot of negative news before it gets better. Doubtless there will be cases we will be amazed have lingered only to explode somewhat scandalously a decade down the road (or sooner since the salary threshold for non-exempt moves to $51,000 in 2020).

The situation is likely to force long delayed conversations between arts organizations, their funders, boards, audiences and employees about what is really required to operative effectively.

The only consolation is that this conversation will still be way easier than talking to your kids about sex.

I don’t think I am being especially prescient when I say now would be a good time to develop a cogent response to the statement “Arts need to be self-supporting or close,” and start distributing the talking points to everyone. It is guaranteed that sentiment will be expressed constantly.

At the same time, a serious discussion about business plans and legal structures employed by arts organizations may become unavoidable. We may see groups recreate and reinvent themselves. Especially if non-profits are permitted to retain their assets as they transition into a corporate entity with a different tax structure.

All this being said, the American Theatre piece discusses how organizations are already making efforts to implement constructive measures to prepare for these changes.

Maybe around this time next year when people have been operating under the new rules for 9-10 months, I will suggest to Drew McManus that ArtsHacker do a series on some practices and restructuring efforts that initially seem to be working. The salary changes are going to have too significant an impact on the arts industry not to share advice about what has been successful for the organization and beneficial to employees.

In the meantime, I will work on learning more about the implications of FLSA rules in order to provide tips about how to prepare for the changes.

For example, many organizations may not know that use of comp time to offset “binge-and-purge” schedules around production time is already illegal  and is about to become more so for a wider range of employees.

But this kind of comp-hours time-shifting isn’t kosher under FLSA provisions. If a non-overtime-exempt employee works 60 hours one week, say, they can’t offset that by clocking just 20 the next week; they’ll be earning their regular salary for the 20-hour week and time-and-a-half for the hours over 40 in the 60-hour week. This was always the case under the FLSA, but with the new $47, 746 threshold, it will apply to many more employees than before.

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Middle School Is Too Young To Start Suffering For Your Art

There is a lot of conversation about the importance of advocating for the funding and inclusion of arts in K-12 education but according to a recent study, some attention needs to be paid to the social aspects experienced by students interested in the arts.

According to a recent piece in Pacific Standard (h/t Createquity), students taking music and theatre classes are more likely to be bullied than other students. The study the article cites (subscription required) did not include visual arts students.

The study involving 26,420 middle and high school students found that bullying peaks in middle school.

…female music and theater students faced a 41 percent greater risk of being bullied, and male music and theater students faced a 69 percent greater risk of being bullied than their peers.”

Looking specifically at middle school — a period when bullying typically peaks — the researchers found theater and music students had a 39 percent chance of being bullied, compared to a 30 percent chance for their peers who did not participate in such activities.

Not surprisingly, the bullying was more likely to involve physical aggression for boys, and relational aggression for girls — hurtful behavior such as spreading rumors or exclusion from desirable social activities. Female music and theater students had nearly a one-in-three chance of experiencing this sort of victimization, compared to a one-in-four chance for female athletes.

The researchers suggest that perhaps arts educators should receive additional training making them aware of these potential factors in their students’ lives to help prepare the teachers to be better mentors and resources for the students. In addition, they encourage zero tolerance for bullying of any sort and opening arts related rooms as safe spaces where students can gather for some respite.

In something of a “physician heal thy self” approach, the authors of the research paper propose use of arts to combat bullying in general.

Teachers can use discussions of the social-emotional import of art to reduce bullying by drawing parallels from what may seem to students as distant abstractions of composer’s or playwright’s artistic intent into the students’ own lived experiences. Drawing connections from art to daily lives in a framework intended to support students social-emotional competencies can actually reduce bullying and victimization, which seems like a worthwhile investment of time given the results of the present study.


…a drama-based bullying unit was developed by teachers in a middle school and used in social studies classes to supplement a larger, schoolwide anti-bullying initiative. In the program Burton (2010) described, students assumed the roles of bully, victim, and bystander in theatrical improvisations. The improvisations among girls especially brought the covert nature of relational aggression into the open and allowed victims of bullies a chance at “role reversal, choosing to portray bullies carrying out bullying they had actually experienced” (p. 264). The improvisations were then used to develop devised theatre pieces that were presented to younger students as part of a successful bullying reduction and prevention program.

I don’t know about you, but when I read about improv among girls bringing the “the covert nature of relational aggression into the open and allowed victims of bullies a chance at “role reversal…” I immediately thought of this scene from the movie Mean Girls.

I had worked for an organization that ran a residential arts summer camp and it was always clear that the kids reveled in an environment that didn’t pressure them to conform as they did in school the rest of the year. It didn’t necessarily strike me at the time that they were subject to more bullying than their peers. This was over a decade ago, before social media really took off, so the bullying may not have been as magnified. The data runs from 2005-2011, but the researchers don’t indicate if it has gotten worse across that time period.

Regardless, this is a factor in arts education to which to pay attention. Declaring success in preserving funding for the arts in your school district is worthless if kids are being intimidated for participating in the classes and activities.

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All Your Trend Are Belong To Us

Over the years I have frequently cautioned against becoming invested in the current hot thing that everyone is doing because the fad could pass quickly and you will have spent a lot of time and resources on something that is no longer viable.

One important thing I have never really been able to define is how to determine the difference between a long term trend and a passing fad.

Fortunately, Colleen Dilenschneider provides some intelligent guidance on the subject on her Know Your Own Bone blog. (my emphasis in green, rest is her’s)

So how can your organization figure out if something is a fad or a trend? A helpful trick may be to consider that trends inevitably affect some form of the organization’s engagement strategy, but fads usually influence tactics. This isn’t a fool-proof trick, but it can help your organization think strategically about the differences between both fads and trends.

For instance, social media use is a trend and that affects your engagement strategy, but selfies affect how you can carry out that strategy. Screaming “YOLO” and going gluten-free are things that folks may be doing these days – and, in order to remain relevant, your organization may benefit by embracing them for now. But these fads affect your organization’s tactics (and messages and programs), not its strategy. Data-informed management affects your strategy. Embracing transparency affects your strategy. The trend toward personalized interactions and programs thanks to our increasingly individually-tailored world is a trend and also deeply affects our strategies.

So by this definition, fads don’t really become trends in the same way ponies don’t grow up to be horses. (In fact, wanting a pony for your birthday is just a fad for most of us.)   But to confuse things, what social media tells you are trending topics are really just fads. (Whereas “all your base are belong to us” riffs are memes)

My advice in the past has generally been to wait, watch and evaluate whether something is going to endure and whether it is suited to your organizational goals and identity.  Dilenschneider takes a slightly different approach essentially saying it is okay to jump on the latest bandwagon, just don’t mistake it for an interstate shuttle.

Dilenschneider makes a valid point that it can be just as detrimental to be averse to adopting innovation as it is to waste time and energy chasing the latest fad.

If you have the time and resources, jumping into something knowing that it will be a short term project you will eventually discard can be useful in identifying new potential audiences and partners, and gauging your capacity to execute different sorts of activities. Essentially, something akin to rapid prototyping in software.

For example, you may never have considered the possibility of mounting performances or a festival in dance clubs. Yet over the course of playing with a lot of fads, you connected with demographics different from your core audience and had done some minor promotions with local bars. All this gave you the inspiration and confidence to do shows in bars.

Just remember though, this is an ideal outcome. It is very easy to become involved with a fad that becomes a long term detriment to your organization. Remember when Groupon was hot? Everyone was excited by it, but it became a nightmare for a lot of companies who lost money through discounting and never gained return business or loyalty. I know someone who still uses it regularly to find things to do, but never returns to a company unless there is another discount offer.

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