Gender Pay Equality Legislation: new Ordinance regulates aspects of Decree Nr. 11,795/2023

In brief

On November 27, 2023, a new Ordinance (Nr. 3,714/2023) was published to regulate Decree Nr. 11,795/2023, outlining administrative procedures for the Ministry of Labor and Employment to act on the salary transparency mechanisms dealt by the Decree and by the new gender pay law (Law nr. 14,611/2023).

In more detail

The Ordinance sets forth that the Wage and Remuneration Criteria Transparency Report (“Report”) will be prepared by the Ministry of Labor based on (i) data collected from employers via eSocial (“Section I”), and on (ii) additional information from the employer’s area of the Emprega Brasil Portal (“Section II”), yet to be created.

The Report’s section derived from eSocial data (Section I) will include employer registration details, the total number of employees by company and establishment, the total number of employees categorized by gender, race, and ethnicity, along with corresponding contractual salary values and monthly remuneration amounts (including bonuses, commissions, and other components mandated by law or collective bargaining agreements). It will also encompass positions or occupations according to the Brazilian Classification of Occupations (CBO).

Section II of the Report will include information on the existence or absence of career plans and salary structure, remuneration criteria for employee access, progression, or promotion, the presence of incentives for hiring women, identification of employer criteria for promoting to managerial, supervisory, and directorial positions, and the existence of employer initiatives or programs supporting the sharing of family responsibilities.

The Ministry of Labor will publish the Report in March and September of each year through a specific statistics platform. Employers must provide additional information via a tool provided by the Ministry of Labor in February and August of each year for the first and second semesters, respectively.

In addition to the publication Reports on specific platforms to be created by the Federal Government, employers must publish the Report on their websites, social networks, or similar instruments in a visible location.

In case salary and remuneration criteria disparities are identified, employers will be notified by the Labor Inspection to develop an Action Plan for mitigating such disparities within ninety days from the initial notification. This plan should include goals, deadlines, and result assessment mechanisms. The Regulation also specifies that a copy of the Plan must be deposited with the relevant professional category labor union.

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