New Normative Act Published By Ministry Of Labor And Employment On Equal Pay Law

The Ministry of Labor and Employment (MTE) recently published the Normative Instruction No. 6 (IN), to address points that were still controversial in relation to Federal Law No. 12,611/2023. This law provides for equal pay, including salary, criteria for women and men, and, until  the IN’s publication, had been regulated only by Decree No. 11,795/2023 and by MTE Ordinance No. 3,714, of November 24, 2023.

Salary Transparency and Compensation Criteria Reports

Companies with more than 100 employees must publish their Salary Transparency and Remuneration Criteria Reports (“Transparency Reports”) twice a year, in March and September.

The Transparency Reports must include information on the distribution of employees by gender, race, and ethnicity, as well as the median and average salary values. The data is extracted by the MTE from eSocial and Portal Emprega Brasil.

The inclusion of data on the salaries of women compared to men will be used to evaluate any gender inequalities (“Labor Audit”). Companies must also provide information on  any hiring policies for women, especially black women; individuals with disabilities; those who have reported experiencing domestic violence; female heads of households; and LGBTQIA+ individuals.

Action Plan to Mitigate Unjustified Salary Differences

In addition to publishing Transparency Reports, if the Labor Audit finds unjustified salary differences between women and men, the company will be notified that it must present an Action Plan to Mitigate Unjustified Salary Differences (“Action Plan”) within 90 days. The plan must contain:

• Measures to be adopted with a priority scale; assigned to each
• Goals, deadlines, and mechanisms for assessing results;
• Execution timeline;
• Evaluation of measures, semiannually at a minimum ;
• The creation of programs for: (a) training managers, supervisors, and employees on the importance of equity between women and men in the labor market; (b) promoting diversity and inclusion in the workplace; and (c) training and preparing women for entry, retention, and advancement in the labor market on equal terms with men.

The Labor Audit will be used to monitor the implementation of the Action Plan , and the auditors may request adjustments or the creation of a new plan if they find the existing one inadequate.

In the preparation and execution of the Action Plan, the participation of representatives from labor unions and employee representatives in workplaces will be guaranteed, as provided in collective bargaining agreements or, in their absence, through an employee committee.

Disclosure and Access to Information

Transparency Reports must be widely disseminated by organizations—on their websites and social media—ensuring the reports are accessible to employees and the general public.

Employers may include explanatory notes in a separate document to justify any salary differences based on Article 461, §2º of the CLT.

Methodology Implemented to Prevent Employee Identification

The methodology for the Transparency Reports has been carefully designed to ensure confidentiality, preventing the identification of employees. Only information involving a minimum of three men and three women will be disclosed, to avoid exposure of an individual’s data.

Conclusion

The publication of the IN signals that the MTE will intensify inspections on this matter from now on. Therefore, organizations must pay even more attention to complying with the regulations governing equal pay and to any potential need to resort to the judiciary in case of regulatory overreach by MTE.

The Employment and Benefits practice at Tauil & Chequer Advogados in association with Mayer Brown is available to assist companies with any questions related to this topic.

Additional author: Lucas Figueira Porto