Enacted on July 3, Law No. 14,611/2023 provides for equal pay and remuneration criteria for men and women. It aims at regulating and ensuring equal pay for women and men by establishing compensation, fines and obligations for employers.
Equal pay is nothing new in the recent legislation. Equal pay was already provided for in article 461 of the Consolidation of Labor Laws, which stated that “if the job is identical, all work of equal value, performed for the same employer, in the same location, shall correspond to equal pay, without distinction as to sex”. In 1952, this provision was amended by Law 1,723, including the prohibition of wage, age and nationality discrimination and, in 2017, with the Labor Reform, it was extended to ethnic groups.
As you can see, the recently enacted legislation has not innovated on the subject of equal pay, but it has brought in obligations to do so with the aim, above all, of ensuring equality and the necessary inclusion of women in the job market (a subject that has already been dealt with in Law No. 14,457/2022).
The new legislation introduced “equality of remuneration criteria”, which includes variable remuneration such as bonuses and commissions. This situation had already been dealt with in case law but was validated by the legislation.
Another novelty brought about by the new law is the wording of Article 3, which amends Article 461 of the Consolidation of Labor Laws, guaranteeing discriminated employees the right to sue for non-pecuniary damage, taking into account the specifics of each case. In addition, employers who fail to comply with the regulations will be subject to an administrative fine of 10 times the equivalent salary, which may be doubled in the event of a repeated offence (ex vi §7, art. 3).
In order to ensure equal pay and remuneration criteria, the law established a number of measures: establishing mechanisms for transparency in pay and remuneration criteria; increasing monitoring against discrimination in pay and remuneration criteria between women and men; providing specific channels for reporting discrimination in pay; promotion and implementation of diversity and inclusion programs in the workplace, which include training for managers, leaders and employees on the subject of gender equality in the job market, with measurement of results; and encouraging the training and education of women to enter, remain and rise in the job market on equal terms with men.
Still within the obligations to do, it has been determined that companies with more than 100 employees must publish, every six months, a salary transparency report, including variable remuneration, with due regard for the protection of personal data under Law No. 13,709/2018. There is a fine of up to 100 minimum wages in the event of non-compliance.
The new legislation did not, however, bring about any change in relation to paragraphs 1 and 2 of article 461 of the Consolidation of Labor Laws, which guarantees equal pay for workers who perform identical duties and work of equal value in the same premises, in the case of work with the same productivity and technical perfection. In this situation, isonomy is not guaranteed in relation to the difference in length of service for the same employer of no more than four years and the difference in time in the job of no more than two years.
This is contradictory to Article 2 of the new law, which provides: “equal pay and criteria for equal pay between women and men for work of equal value or in the performance of the same function.
The proposal of the new legislation seems interesting when it aims at equalizing work between women and men. But, at the same time, it has some gaps in its interpretation since, as mentioned, it has kept some provisions of the original CLT rule, which leaves a certain amount of legal uncertainty.
And what about your company, is it ready for the changes introduced by Law 14.611/2023? Remember, failure to comply will result in an administrative fine, as well as the risk of lawsuits in the Labor Courts.
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