Equal pay: law has flaws and could affect reputation

Companies are considering going to court to avoid having to forward data
that will feed the federal government systems as required by the Equality Act
Salary, according to lawyers interviewed by Folha.

The deadline for submitting the salary transparency and remuneration criteria report
was extended until next Friday (8), but the companies understand that the base
of data used in preparing the required reports is fragile, which can create a
impression that the company does not adopt measures to promote gender equality.
The effect, in the end, would be to compromise their public image. According to the law,
companies with more than one hundred employees must provide information about their
frameworks for monitoring gender pay inequality.
The database considered for the report is the CBO (Brazilian Classification of
Occupations). In the opinion of lawyer Caio Taniguchi, partner in the area of ​​Law
Labor and Social Security of the TozziniFreire office, it is limited by not showing
possible reasons for salary differences in the same position, such as time of service
company, employee specializations, commitment, etc.

“Despite the criticisms presented about the mechanisms that will be used to
to investigate the remuneration received by men and women, there is no discussion of
importance that a law of this magnitude has nowadays”, Gabriela Carvalho,
labor coordinator at PSG Advogados.

The biggest concern is what they consider to be a lack of clarity about what will be
considered by the Ministry of Labor and Employment, responsible for supervising the
companies within the scope of the law and apply fines. Those who do not send the data to the
report will pay an administrative fine of up to 3% on the payroll, with a limit
fixed at one hundred minimum wages.

Taniguchi draws attention to the fact that the preparation of the report will be the responsibility of
Ministry of Labor and Employment, and not to companies. This is another point of
insecurity for entrepreneurs.
Labor lawyer Fábia Bertanha, from the Lopes Muniz law firm, also points out that the
data also do not consider points negotiated in collective agreements or standards
internal that may generate salary differences and that would not be discriminatory
In addition to the lack of detail, Manuela Cristina Fernandes Leite, labor lawyer
who coordinates Chiode Minicucci Advogados, highlights that the CBO groups the positions into
large groups. “This means a huge variety of positions that often have
remunerations that are quite different from each other will be grouped within the same
'universe'”, ponders Leite.

The classification of occupations, according to Taniguchi, from TozziniFreire, was never used to
inspection purposes, only for statistical purposes. Therefore, there is no
detailing in this system how existing job structures work.
Together with the Ministries of Labor and Employment and Women, lawyers who
serve companies made little progress in trying to answer questions. After a
online transmission made by the departments to deal with the matter, the perception was more
problems.

One of them, according to Manuela Leite, is the decision of the ministries to use information
relating to the “median contractual salary”, the “median admission salary” and the “salary
average actually paid”.

“None of these definitions are in the legislation. The mathematical question, between averages and
medians, is already quite complex —as they are not easy numbers to find for a
company,” says the lawyer.

The Ministry of Labor and Employment was contacted by the report, but has not yet
he responded.

Companies also fear the effects of disclosing salary and job data,
both for competitiveness between companies, and also because it will allow them
employees compare their salaries based on objective criteria. That's right
after the Ministry of Women ensured that the law does not violate the LGPD (General Law for the Protection of
Data).

“In my opinion, the publication of this data will increase the judicialization of requests
of equality and equal pay,” says lawyer Gabriela Carvalho, coordinator
labor law at PSG Advogados.

When the employee is unique in his/her role, there is still the risk of easy identification,
even if your name is preserved.

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Salary adjustments based on productivity and meritocracy would also be at risk. As the
report will be widely publicized, companies could avoid these promotions
so that they are not later seen as discriminatory.

For lawyer Érika Seddon, partner in the firm's Labor and Union practice
Mattos Filho, companies' concern about reputational damage is legitimate. In
her assessment, the report may expose a degree of gender inequality that
it really exists, but it appears to be worse than it actually is.

Legislation addressing pay equity also requires companies to report
its policies to promote equality. According to Caio Taniguchi, from TozziniFreire, the
available form has only topics that hinder the release of
information.

Lawyers say that although gender inequality exists in companies, there is
an effort to adopt practices that reduce disparity.

“There’s no point in just chasing companies to adapt their practices
wages, while the regulation of paternity leave is still at a standstill
National Congress, for example,” says lawyer Manuela Cristina Fernandes Leite.
The expectation of lawyers who serve companies is that the start of the validity of the
law serves more as an educational tool rather than a punitive one.

To Folha, the Minister of Women, Cida Gonçalvez, said that she does not intend to fine
companies immediately. According to her, the government wants to see the law complied with at least
with equal pay at the base, that is, in starting salaries in companies.

Article originally published on February 29, 2024 in Folha de S. Paulo.