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The Risky ‘Business of Art’ Explored at Observer Event

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From left: Massimo Sterpi, Elena Zavelev, Anne Bracegirdle, Devin Finzer, Curt Bilby / Photo: Keith Sherman & Associates

NEW YORK—On May 21, the Observer’s inaugural “Business of Art Observed” event brought experts in art, insurance, risk management, tech and finance to the Roosevelt Hotel to discuss established and emerging risks facing the $50 billion art industry.

The “Insurance and Risk Management” session wasted no time exploring creative risk and claims management approaches to the various forms of potential damage to artwork. From transit to security to geopolitical risk, panelists agreed fine art coverage is not a paint-by-numbers process, and said the “framing of a claim” can facilitate a payment.

“Insurance companies get a bad reputation,” said Mary Pontillo, senior vice president and national fine art practice leader at DeWitt Stern. “But the higher-end, really good-quality insurance companies are looking for ways to pay claims. I think that’s where there are a lot of misconceptions.”

For example, she mentioned advising a client whose work was being kept on a yacht. While certain maritime and environmental risks such as humidity were not covered by the policy, she was able to demonstrate that ocean spray had been the source of the damage and successfully get the claim covered.

The session discussed modernizing risk management in the art market and how the industry should apply forensic due diligence to transactions and ensure they view all business activities through a lens of strategic risk. And with transparency cited as a continuous challenge, Dennis Wade, a senior partner at Wade Clark Mulcahy, LLP, who has handled international fine art matters, pointed out the importance of reputation risk when drafting a policy.

“Many policies also contain an exclusion for the dishonesty of the person to whom you deliver or entrust the goods,” Wade said. “So if you consign a work to a corrupt gallerist, there may be an exclusion in your policy and you may not be covered at all.”

The emergence of blockchain technology dominated discussion at another session, “Art Market 2.0: Using Art & Technology to Drive the Industry Forward.” According to panelists, authentication and secure transactions have risen to the top of their risk registers. New Art Academy Founder Elena Zavelev said blockchain’s ability to put individual faces on digital artwork has mostly solved the prior risk of unauthorized duplications, forgeries, and fraud. Zavelev and her co-panelists said blockchain may facilitate a long-term change in the way art is created, sold, curated and insured by improving the ability to track a work’s provenance.

Christie’s AVP Anne Bracegirdle said the masterstroke for streamlining the authentication process is to create a digital, industry-wide registry. Tokenizing original works, she said, would simplify the experience of buying, selling and trading. “If each piece had its own digital identity that would stay the same, no matter where it went, it would instantly provide secure provenance and prices,” Bracegirdle said. “There are companies like Consensus and Microsoft working to create distributed identity networks. The security within that could be applied to scale blockchain—regardless of which blockchain you’re interacting with. Digital identities would provide clients with access to all their consignments and their purchases in one consolidated space, which currently doesn’t exist.”

The evolution of art was also a hot topic during this session since what’s considered a “finished piece” is no longer just a physical canvas. Digital, virtual and even crypto-art may be in their relative infancy but these are gaining global popularity and could significantly influence the industry, said Devin Finzer, co-founder and CEO of OpenSea, a peer-to-peer marketplace for crypto collectibles, gaming items, and digital art.   

“[Owning digital products] has always been confined to a specific ecosystem, like event tickets to a ticketing site,” Finzer said. “Blockchain offers a new type of ownership for these digital assets and it’s exciting for digital art because you can own it in a variety of [digital forms]. Right now, we see the enthusiasm is from tech enthusiasts, but I think over time these ideas around digital ownership will cross over to a mainstream crowd who appreciate the art more than the technology.”

McDonald’s Sued for Sexual Harassment at Franchises

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This week, 25 women in 20 cities across the United States brought sexual harassment charges and lawsuits against fast food giant McDonald’s with the U.S. Equal Employment Opportunity Commission (EEOC), alleging that the company has neglected its duty to protect employees from harassment. In fact, the women claim, the company has often punished those who have spoken out against abuses, including cutting their hours and revoking promotion or training opportunities.

These are hardly the first claims that female workers have brought against the restaurant chain. In the past 10 years, the EEOC has filed multiple lawsuits against McDonald’s for allegations related to sexual harassment and inappropriate behavior at franchises across the country. In May 2018, 10 women filed harassment complaints, including “alleged groping, propositions for sex, indecent exposure and lewd comments by supervisors,” according to the Associated Press. They too alleged that they faced negative consequences when they objected to these abuses. Workers also launched strikes to protest against sexual harassment and other inappropriate treatment in May 2015 in Chicago and September 2018 in 10 cities.

These lawsuits correspond with a planned strike on Thursday, May 23, to protest low wages and the company’s refusal to get involved with franchises’ pay decisions and negotiations, as well as workers’ ability to create a union. The wider protest movement Fight for 15 (named for their demand for a $15 minimum wage) has backed the sexual harassment claims and lawsuits, as have the National Women’s Law Center’s Time’s Up Legal Defense Fund, the ACLU, and several law firms.

Because it operates on a franchise basis, McDonald’s has said that it has no responsibility or liability for any abuses (or wage decisions) at individual locations—that it is not a “joint employer” with its franchises, and franchise employees are not direct McDonald’s employees. In April, the Trump administration announced that it would reverse Obama-era interpretations of what qualified as a joint employer, which had made chains more liable for labor violations at their franchises. The Trump administration change is still in the proposal stage, but could clarify who can be held responsible for sexual harassment and wage disputes, relying on four factors: who can hire/fire the employee, who has control over work schedules, who sets pay rates and who maintains employment records. This change could make chain companies significantly less responsible for conduct at their franchises.

McDonald’s has stated that it provides comprehensive policies and training to help franchises prevent sexual harassment. The company also said that it has brought in experts to help “evolve” those processes, and set up an anonymous hotline to report harassment. However, advocates say that without visible enforcement of its policies, these steps are not enough. Workers at low-paying jobs, including fast food, are uniquely vulnerable to harassment and other workplace abuses. One 2016 study found that 40% of female fast food workers had been sexually harassed in the workplace, and that this was “substantially higher than in workplaces overall.” Additionally, the study found that 42% of female fast food workers who were harassed in their workplace “feel forced to accept it because they can’t afford to lose their job,” 21% said they faced negative professional consequences after reporting the inappropriate behavior, and 45% said they experienced physical and mental health problems as a result of workplace harassment.

As Risk Management has covered before, no matter what the industry, companies and their HR departments have the obligation to keep their employees safe from workplace harassment, and should implement strict HR policies to address it. These policies should include clear reporting guidelines (not just to tell an immediate supervisor, who is often the person harassing the employee) and strong disciplinary measures, as well as mandatory and regular anti-harassment training. For risk management and HR professionals reviewing their existing policies, these tips can help ensure they foster a workplace culture in which reporting harassment is encouraged and illegal or inappropriate conduct is swiftly and effectively investigated and punished.

Microsoft Vulnerability A Reminder to Update and Patch

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Microsoft recently announced a major vulnerability to Windows XP, Windows 7 and several older Windows server versions. According to Simon Pope, the company’s director of incident response, “[A]ny future malware that exploits this vulnerability could propagate from vulnerable computer to vulnerable computer in a similar way as the WannaCry malware spread across the globe in 2017.” This announcement reinforces the importance of companies patching security vulnerabilities to mitigate the risk, especially on older machines that still serve essential functions.

This news follows a TechCrunch article reporting that at least a million computers worldwide, mostly in the United States, remain vulnerable to the WannaCry and NotPetya malware because users have not installed the necessary patches. Cybercriminals continue to use this malware, based on hacking tools originally developed by the NSA, to deliver all sorts of malicious software to unsuspecting victims online.

WannaCry is ransomware—malicious software that hijacks a computer and demands payment to regain control—that quickly spreads and has affected businesses, government and individuals in over 150 countries since 2017. Around the same time, a malicious software disguised as ransomware called NotPetya spread worldwide, affecting global business operations, and effectively paralyzing multiple companies in what has been called “the most devastating cyberattack in history.” Both caused massive financial damage worldwide, with WannaCry estimated at $8 billion in damages and NotPetya estimated at $3 billion.

Windows has released patches to protect systems from the newly announced vulnerability, even for Windows XP and Windows Server 2003, despite the company not usually offering support for those older systems.

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However, XP users will have to manually download the patches from Microsoft’s update website. According to a 2017 Spiceworks study, businesses worldwide were still running Windows XP on 11% of their laptops and desktops. While that has likely decreased in the past two years, it would still leave a significant number of machines running exposed systems that require manual updates to patch.

Not patching vulnerabilities has led to serious incidents, like the Equifax breach in 2017, which led to the theft of 143 million Americans’ personal information.

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In that case, the US Department of Homeland Security had issued a warning about the vulnerability, a patch for a web application vulnerability had reportedly been available for 2 months before the breach, and Equifax failed to implement the fix. A US House Oversight Committee report blamed the company entirely, saying that Equifax “failed to implement an adequate security program to protect this sensitive data,” and that “such a breach was entirely preventable.”

Companies use numerous different types of software in their daily operations, and software providers issue many patches for their products, which leaves companies overwhelmed. According to an April 2018 Ponemon Institute study, 68% of companies “find it difficult to prioritize what needs to be patched first.” IT staffing limitations and competing priorities within organizations can hinder these efforts, since patching requires heavy time investment and sometimes taking important aspects of the business offline to implement fixes. Companies with third-party partners and supply chains face even more complex risks, since their systems are often integrated or dependent, and companies likely do not have direct control over partners’ systems to ensure patching. Mitigating outside risk by including in contracts stipulations that third-party partners meet certain security requirements can also help.

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Japanese Companies Look to Cut Costs by Curbing Smoking

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Concerned about lost productivity and higher employee healthcare costs, many employers are taking serious steps to eliminate smoking among employees. In Japan, a number of companies and educational institutions are now even basing hiring decisions on whether an applicant smokes.

Some scientific evidence suggests that employers’ concerns about the added costs costs are valid. A 2018 study conducted by Ohio State University found that smokers in the U.S. cost private sector employers an average of $5,816 extra per year, excluding additional costs that the employees themselves may pay. These employer costs include “excess absenteeism,” “presenteeism” (lower productivity on the job), “smoking breaks,” “excess healthcare costs” and “pension benefits,” with time devoted to smoking breaks making up the majority of costs. Stopping smoking eliminates lost time for smoke breaks entirely, unlike other high-cost factors like healthcare and absenteeism, which could continue after an employee stops smoking.

Smoking is more prevalent in Japan than in the United States, especially for men.

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Although the rate has been falling steadily, a 2018 national study showed that 28.2% of men and 9% of women in Japan smoke, compared to 15.8% of men and 12.2% of women in the United States, according to the Centers for Disease Control and Prevention.

In April, more than 20 Japanese companies signed onto a corporate partnership to promote anti-smoking steps. Starting in spring 2020, for example, insurance company Sompo Japan Nipponkoa Himawari will not hire any new employee who smokes, and will require its high-level officials to sign a document pledging not to smoke during work hours. The private sector in Japan is not alone in pushing for less employee smoking—Nagasaki University announced last month that it would stop hiring faculty who smoke and banned smoking on campus, and Oita University has “put priority on nonsmokers” when hiring.

Part of this effort is incentivizing quitting.

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Employees who quit smoking at Japanese company Rohto Pharmaceutical Co., for example, get tokens they can use at the company cafeteria or for other benefits. Marketing firm Piala Inc. is also offering an extra 6 paid days off to non-smoking employees, and 4 of its 42 smokers have reportedly quit smoking thus far.

While programs to incentivize quitting may seem intuitive, according to Ohio State’s Micah Berman, lead author of the school’s study, these efforts may also be pricey for employers. “Employers should be understanding about how difficult it is to quit smoking and how much support is needed,” he said.
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“It’s definitely not just a cost issue, but employers should be informed about what the costs are when they are considering these policies.” These can include the costs of direct incentives like the ones noted above, or the additional healthcare cost of prescription drugs or counseling to help quit. However, in the long-term, companies that implement cessation programs—especially those that have a large number of smoking employees to start—are likely to see the benefits outweigh initial investment costs within 4 years.

Companies may save money by encouraging employees to quit smoking, especially in lost time and healthcare spending, but they should examine the costs and benefits of instituting formal or informal policies to change their employees’ habits. Running afoul of legal protections, as well as making workplaces unfriendly to employees who smoke, being perceived as interfering with employees’ activities outside of work and other considerations may outweigh employers’ concerns for their workers’ health and excess spending.

Japanese companies have stated that they believe these steps are legal, and some U.

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S.-based companies, including Scotts Miracle-Gro and Weyco, Inc., have reportedly made similar efforts to discourage their workforces from smoking. Some companies in the U.S. may be unable to explore such potential programs, however. According to legal experts, “around half of [U.S.] states currently legally protect employees from being denied positions, or having employment contracts terminated, due to tobacco use.”